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[2006] WASCA 142
Court of Appeal (WA)
2006-07-12
Smith JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MORRIS -v- THE QUEEN [2006] WASCA 142
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Appeal - Duress - Section 10.2 Commonwealth Criminal Code Act 1995 - Witnesses - Accused and mother giving evidence - Direction that jury must consider a witness' interests in the outcome of the case - Accused and his mother "really the key players" - Jury have to look at what interest they may have in the outcome - Misdirection - Proviso - Whether s 30(4) Criminal Appeals Act 2005 (WA) applicable
Appeal - Criminal law and procedure - Two counts of importing prohibited imports contrary to s 233B Customs Act 1901 (Cth) - Duress - Section 10.2 Commonwealth Criminal Code Act 1995 - "Reasonably believes" - Whether test objective or subjective - Direction that jury to have regard to personal characteristics of accused, including their age, sex and maturity - Whether correct direction
Customs Act 1901 (Cth), s 233(1)(b)
Respondent : Commonwealth Director of Public Prosecutions
Buttigieg (1993) 69 A Crim R 21
Conlon (1993) 69 A Crim R 92
Darkan v The Queen [2006] HCA 34
Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 80 A Crim R 553
Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65
Jettner v Peach [2003] NTCA 16
Lanciana (1996) 84 A Crim R 268
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Oblach v The Queen [2005] NSWCCA 440; (2005) 195 FLR 212
R v Abusafiah (1991) 24 NSWLR 531
R v Brown (1986) 43 SASR 33
R v Hudson [1971] EWCA Crim 2; [1971] 2 QB 202
R v Rae [2006] QCA 207
R v Smith [2005] QCA 1; [2005] 2 Qd R 69
R v Williamson [1972] 2 NSWLR 281
Ramey v The Queen (1994) 68 ALJR 917
Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531
Rogers (1996) 86 A Crim R 542
Stafford v The Queen (1993) 67 ALJR 510
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88
Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Youssef (1990) 50 A Crim R 1
Asquith (1994) 72 A Crim R 250
Brotherton v The Queen [1992] 29 NSWLR 95
Hickman v The Queen [1993] SASC 3993; (1993) 60 SASR 415
Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493
R v Copeland (1997) 194 LSJS 1
R v Mathebula [2004] VSCA 74
R v Ong (2001) 80 SASR 537
R v Osland [1998] 2 VR 636
R v Wilson [1992] 2 Qd R 174
1 ROBERTS-SMITH JA: This is an appeal against conviction on two counts of importing prohibited imports contrary to s 233B of the Customs Act 1901 (Cth).
2 In the District Court at Perth on 22 November 2004, following trial before Crisford DCJ and a jury, the appellant was convicted of one count of importing not less than the trafficable quantity of ecstasy and one count of importing not less than the trafficable quantity of cocaine. He was sentenced to 4 years' imprisonment on count 1, that sentence to commence on 24 December 2003, and 4 years' imprisonment on count 2, to commence on 24 June 2004. Her Honour fixed a single non-parole period of 20 months to run from 24 December 2003.
3 There is one ground of appeal which is as follows:
"The learned trial judge erred in law in directing the jury (p299 trial transcript):
'A lot of it is going to depend in this case on credibility or believability, reliability of what a witness says to you. You are the sole judges of the credibility of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness you should consider his interest or her interests in the outcome of the case. You have the Federal Police having a certain point of view. You have Mr Morris. You have Mr Morris's mother. They are really the key players in this, perhaps Mr Morris and his mum more than the Federal Police, but you do have to look at what interest they may have in the outcome, their manner of testifying.';
4 On the face of it, the impugned direction was in clear conflict with the decision of the High Court in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531. The respondent does not dispute that, but says this was a "most exceptional" case in which such a misdirection did not disadvantage the evidence of the appellant. That is said to be because the only issue at trial was whether the appellant was acting under duress within the meaning of s 10.2 of the Criminal Code Act 1995 (Cth) ("the Code") and on his own evidence the jury could have come to no conclusion other than that he was not acting under duress.
5 At the conclusion of the prosecution opening to the jury, the appellant admitted all (what his counsel described as) the "external" elements of both offences. Those admissions were that:
"1. At approximately 3.45 pm on Wednesday, 24 December 2003, he arrived at the Perth International Airport on Singapore Airlines flight SQ223 from Manchester in the United Kingdom via Singapore.
2. he travelled on United Kingdom and Northern Ireland Passport, number 103657942 and Electronic Ticket number 618 6291 482413.
3. he entered Australia at Perth from the United Kingdom knowing that he had two sealed plastic bags strapped to his groin area containing what he believed to be a quantity of ecstasy tablets, and a quantity of cocaine powder. He further admits that the tablets were in fact ecstasy and the powder was cocaine.
4. the ecstasy tablets (viz 3, 4 Methylenedioxymethamphetamine) consisted of 2373 white tablets with a 'Euro' motif with a net weight of 686 grams. The tablets contained 17.6% pure 3, 4 Methylenedioxymethamphetamine, namely 120.7 grams.
5. The net weight of the cocaine powder was 86.7 grams. The cocaine power [sic] contained 42.6% pure cocaine, namely 36.9 grams."
6 With leave of the trial Judge, counsel for the appellant then made a brief address to the jury. He read s 10.2 of the Code to the jury and told them that whether the appellant was acting under duress may be an issue in the case. He put it that way, as I apprehend it, because of course duress as an issue would not arise unless and until there was some evidentiary foundation for it and in the absence of such foundation, the trial Judge could not allow it to go to the jury.
7 In fact, the appellant did give evidence relative to this and ultimately duress was the only real issue at trial.
8 Notwithstanding his counsel's efforts, the appellant did not give his evidence necessarily chronologically. He tended to pass over some important factual matters only to return to them later. That makes it difficult to discern the precise chronological sequence of events from the transcript of his evidence. In the following summary of his evidence, I have attempted to put it more chronologically than he did at trial. The appellant's narrative was broadly as follows.
9 The appellant was 20 years old at the time of trial. He was born on 29 July 1984 and so was 19 years of age in December 2003. He was born in Liverpool, England, and lived there all his life. For the most of the time he lived with his parents, brother and two sisters. He went to junior school until the age of 13 but did not do very well because, he said, he is dyslexic. He has difficulty reading and writing. He went to senior school close to home until he was 16 years old and then started and completed a three year apprenticeship as a carpenter, the same trade as his father. He then got work with a maintenance company in Liverpool doing maintenance on council houses. At that stage he was living at home with his parents and two sisters.
10 In 2002 he was having a lot of financial problems. He owed [sterling]10,000 or [sterling]11,000. The money was owed to two banks, a finance company and his parents. He had bought a car on hire purchase but later crashed it. The car was written off but he still had to keep making the payments.
11 Before December 2003 the appellant had known a person by the name of Lee Hodge, who lived nearby. Hodge was 27 years old at that time. The appellant actually met Hodge towards the end of 2002 through a friend. The appellant had asked the friend if he knew anyone the appellant could borrow money from because he was in a lot of debt. The friend got in contact with Hodge and a few days later the appellant went and met him himself. He lived about a three minute walk from the appellant's home. The appellant asked Hodge if he could loan him [sterling]1000. Hodge said he would, but wanted [sterling]1300 paid back at [sterling]100 a week. The appellant agreed. Hodge gave him the cash and told the appellant the first payment was due the following week.
12 The appellant made the first three payments but was unable to make a payment on the fourth week. He could not afford it. The workers at his firm had gone on strike.
13 After about two weeks, when he did not pay, Hodge telephoned the appellant at his parents' house and asked him where the money was. The appellant said he had a bit of a problem at the moment and could not pay. Hodge asked the appellant for his address, which the appellant gave him. This was in January 2003, about two weeks after Christmas.
14 The appellant asked Hodge if he could possibly give him a few weeks to pay and Hodge agreed. However, the appellant was not able to make payments the following weeks because he could not afford it. He did not tell his parents, nor anyone else.
15 A couple of weeks later (about January/February 2003) Hodge telephoned the appellant and told him he had two weeks to pay the money "... or you're dead". He said he was coming round as he wanted a word with him. Later that day, the appellant was in the living room of his parents' house when the doorbell rang. He could see it was Hodge. He told his parents to say that he was not in. His mother answered the door and said that to Hodge. When Hodge left she came back and asked the appellant what he had been up to. He said "Nothing".
16 The next time the appellant saw Hodge was at the corner shop. Hodge told the appellant he would give him a few more days to get the money or he would be finished. The appellant told him he would get it. In fact he did not.
17 In the early hours of a morning in early April 2003 the appellant's father woke him, and told him the window of his Ford Fiesta car had been smashed. The car had been parked in the driveway of their house. The left-hand passenger side window had been smashed with a brick. According to the appellant his father "went berserk" and began asking him what he had been up to and who had done that. The appellant told his father he did not have a clue and did not know. He said in his evidence that was not the truth, because he knew Hodge had done it.
18 Probably sometime in about April or May 2003, that is a few weeks after the car incident, Hodge spoke to the appellant again at a soccer match between Liverpool and Charlton. Hodge asked what was happening with the money. The appellant told him he would get it to him that day. Hodge asked why he had changed his mobile telephone number. The appellant told him he had lost his phone. That was not true either; he had in fact changed it. Hodge asked him for the number and the appellant gave it to him. Hodge dialled it into his own phone and rang it while the appellant was there to make sure it was the right number. The appellant asked Hodge what had happened to his car the other night and Hodge told him it would be worse than that if he did not pay the money over the next couple of days.
19 In cross-examination, the appellant said that in this conversation at the soccer match, Hodge also told him that "I will terrorise you or your parents". The appellant said he knew what "terrorise" meant - it was a slang word used in the area to mean bombing or blowing the house up. Also in cross-examination, he said he did not warn his parents of the threat because he was too scared. There were also a lot of other things going on at home. He said he was smashing things up and giving his parents a lot of trouble. He was off work but had told his parents he was not. They thought he was going to work.
20 Over this period the appellant was receiving calls on his mobile phone which he knew to be from Hodge. He would ignore the calls or switch his phone off.
21 The appellant was also on stress leave from work, he said due to Hodge following him to work in his car and watching him or getting other people to follow him.
22 Sometime at the end of September 2003 the appellant was at a pub in West Derby. He went outside to make a phone call and as he got there, Hodge was standing by him. Hodge asked if he had the money. The appellant said "no". Hodge then hit him across the head with an extendable baton. The appellant fell to the ground. He suffered a cut to his head. Hodge told him to get in the car. He promised he would not hit the appellant if the appellant got in the car, so he did. Hodge drove the appellant to Hodge's house. The appellant said that he did what he was told because by that stage he was really frightened of Hodge.
23 They went inside Hodge's house, where Hodge told the appellant he had a way that he could repay the money. The appellant asked him what it was. Hodge told him to go into the back room to talk because his wife and children were in the living room. In the back room Hodge told the appellant he could deliver something to Australia for him. The appellant asked what it was and Hodge told him ecstasy and cocaine. He showed the appellant two parcels that he would be taking and assured him that he would not get caught because there were a few people who had done it for him before.
24 According to the appellant he told Hodge he could not do it. Hodge asked him why and he said that he had never been abroad before and would not know what to do and it was too dangerous. Hodge told him he was going to do it. The appellant said "he wouldn't" and "couldn't".
25 He elaborated on this in cross-examination. He said then that Hodge told him to go and think about it over the next few weeks "... because I'm getting pissed off with you. I want this money or you're doing this". He says he told Hodge he could not afford the money and Hodge told him "If you can't afford the money, you're doing this then". Hodge took the appellant's mobile telephone and looked through it. He noted the number and gave it back. The appellant said he was too scared to go to the police after this.
26 About three weeks later, while it was parked in the driveway of his parents' house, the rear window of the appellant's car was smashed with a brick. The appellant said he had not seen Hodge in the meantime but he knew it was him because he had been "blanking" calls to his mobile since seeing Hodge.
27 The first time the window had been smashed his mother had organised it to be repaired and had paid for that. On this occasion his parents said they would leave it for the night and would get the window fixed in the morning, but after that, he had to get his stuff and get out. They wanted to know what he had been up to and who had done it. He told them that he did not know. Again, that was a lie. He did not tell them because he was too scared. Asked in chief how he reacted to the questioning by his parents, he said that he "smashed everything up in the house" because he got angry.
28 The appellant said that at that time he was treating his mother very badly, abusing her a lot and swearing at her. That was just because he was taking it out on his parents, because he could not tell anybody.
29 His father told him to "get out". The appellant took some of his belongings and moved into a friend's flat about a 20 minute drive away. He did not move back home after that. This was the end of October 2003.
30 About two weeks later, Hodge found out where he was living and arrived at the flat. He knocked on the door but the appellant was too scared to open it. Hodge went away. About half an hour later he came back again and began kicking and banging the door. On that occasion the appellant opened it. Hodge told the appellant to come with him. The appellant refused. Hodge told him to just get in the car and the appellant did because he was scared of what Hodge would do to him and his family. He was referring to the threat to blow up his parents' house made at the football match.
32 Hodge took the appellant into the back kitchen and got two packages out of the dishwasher. The packages were labelled as ecstasy and cocaine. Hodge told the appellant they were what he was taking to Perth. The appellant did not have a clue where Perth was. He had never been out of England. Hodge told him they were going to go back to the appellant's flat because he wanted to get the appellant's passport and details to put on the computer. The appellant said he told Hodge he could not do it, "no way", but Hodge told him they would go back to the flat first and think about it then. As the appellant was on his way to the door out in the hallway, Hodge was behind him and put a small black gun to his back. Hodge told the appellant "You're doing it. I'm sick of this shit. You're doing it. You've got to stopping pissing me off".
33 Hodge drove the appellant back to his flat. They went inside and Hodge told the appellant to give him his passport and basically all his cards with his details and to then come back with him. The appellant had a passport but had never been abroad. He had it essentially for identification to get into places. The passport was tendered in evidence and the entry for Australia on 23 December 2003 is the only stamp in it.
34 Hodge told the appellant that he wanted all of these documents because he was going to book his flight to Australia and needed all the details.
35 They returned to Hodge's house where he made a telephone call to his girlfriend's mother. The appellant was present at the time Hodge asked the mother to send someone over with her credit card. Shortly afterwards, Hodge's girlfriend's brother arrived with a gold Visa card and gave it to Hodge. Hodge made another telephone call, this time to a travel agent. He cancelled a flight booking for a girl and rebooked a flight in the appellant's name. He was arguing on the telephone because he could not get a refund for the whole of the girl's fare. They would only refund [sterling]600, so in the end Hodge accepted that and rebooked the flight in the appellant's name. Immediately after that, Hodge went on to a computer he had in the kitchen and entered the appellant's details. He told the appellant he would be leaving on 23 December. They would have to leave it for a few days until a visa came through. He said he was booking that on the computer. He then gave the appellant a friend's address from which the appellant could collect a suitcase, because he had told Hodge he had no suitcase to take. The appellant left on his own and went to the address given and collected the suitcase. After that he returned home to his flat.
36 He next spoke to Hodge the following day when Hodge arrived at his flat at approximately 8.30 am. Hodge asked the appellant to go with him to a sports shop in Liverpool. They went there and Hodge told the appellant to get age 3 to 11 cycling shorts. The appellant got them and Hodge paid. He told the appellant he would explain when they returned to his house.
37 When they got back to Hodge's house, the drugs were soaking in bleach in a dish bowl in the sink. Hodge took them out with gloves and dried them on a tea towel. He then strapped them both together with brown masking tape. They were in heat-sealed vacuum pressed bags which the appellant had seen him do with a machine in the kitchen on the previous occasion he had been there. He told the appellant to get undressed and put the cycling shorts on, which the appellant did. He then strapped the packages to the appellant with something the same colour as his skin, pulled the cycling shorts up and made him walk around the room for a couple of minutes. He told the appellant that looked fine and it would do. He retrieved the items from the appellant and drove him back to his flat, telling him he would pick him up again at 5 o'clock in the morning "the day after next".
38 On that day, which was 23 December 2003, Hodge arrived at 5 am in his car and took the appellant to his house. They went into Hodge's house where the appellant took his pants off. He put the cycling shorts on with the drugs in and got dressed. He asked Hodge who he was meant to give the drugs to. Hodge told him that he did not need to know the name, there would be a person waiting at the airport with a board with the appellant's name on it. He told the appellant to go with that person and stay with him for a few days and he would pass the appellant some money. He said that person would give the appellant $5000. He said the person would take the appellant back to his house and he was not to worry because there were a few lads from Liverpool who had done it before and who were still staying with him. They were meant to come back but stayed for a holiday.
39 In his evidence-in-chief the appellant said that a few days earlier, Hodge had told him he would "wipe the debt off" and give him $1000.
40 They got to the Manchester Airport about 6.20 am. Hodge told him they had to be there four hours early. Hodge drove into a short stay car park underneath the airport and they got out with the appellant's suitcase and went into the airport. The appellant told Hodge "I can't do this" but Hodge told him to keep his mouth shut and just go with him. They went into a cafe in the airport where Hodge had a cigarette and the appellant had something to eat. Hodge stayed with him until everyone was going in for the flight so the appellant "couldn't do a runner".
41 About 7.45 am the appellant went through security and Customs into the international departure and duty free area. That of course was only for passengers and so Hodge did not go with him. He left the airport.
42 The appellant waited in the departure lounge by himself for about two and a half hours. There were a lot of police officers there, but he was too scared to speak to them about it because of what Hodge would do to his family and because "if [he] got caught [he'd] be in big trouble". In evidence he repeated that Hodge had told him that he would terrorise his family and he believed him.
43 At 10.30 am the appellant boarded the aircraft. The flight stopped in Zurich but he did not leave the plane. There was another stop in Singapore, where he did get off and go into the airport, but he did not say anything to anyone there because he knew how dangerous it would be if he got caught in Singapore.
44 Before landing in Perth, the appellant completed a Customs Declaration Form. There was a question which asked whether the passenger was carrying illicit drugs. He answered that in the negative. The aircraft landed in Perth shortly before 3.00 pm on 24 December 2003
45 On arrival, the appellant left the aircraft and went into a line of people waiting to be processed. He was asked whether or not he had anything to declare and again he answered in the negative. He admitted in evidence he knew at the time that was not the truth. Asked why he did not tell the Customs officer that he was carrying drugs and that he had been made to do so by Hodge, he said it was because he knew what Hodge could do to his parents back home.
46 The appellant then went through a line with the sniffer dog and went over to get his luggage.
48 When he collected his suitcase shortly after 3 pm, the appellant was approached by two Customs officers, one of whom was Officer Atkins. He told the appellant they had reason to believe he was carrying drugs and asked him to undergo a "frisk search" (described as a "pat down" with clothing on). The appellant asked if he was in trouble. Atkins said only if he was carrying drugs, and asked again if the appellant would undergo a frisk search. The appellant agreed and Atkins asked if he wanted it to take place there at the baggage table or in a private room. The appellant requested the latter. A search was conducted by Customs Officer Waugh at 3.37 pm in the Customs interview room at the rear of the baggage examination area at Perth Airport.
49 From the outset, the appellant became progressively more visibly upset. He was having obvious difficulty speaking. Waugh felt something like a hard package in the appellant's groin area. He said to the appellant "You're carrying drugs, aren't you?" The appellant appeared to nod affirmatively. Waugh immediately gave him a formal caution. The appellant did not respond. He was visibly upset. Waugh waited until he had calmed a bit and repeated the caution. He then told the appellant he would be permitted to speak to a lawyer, a friend or relative, or a member of the British government. The appellant's immediate response was to ask whether he would go to prison and asked to speak to his mother. Waugh said he had no idea what would happen to him, but he would pass the appellant's request to call his mother onto the Federal Police as soon as they arrived. He asked if the appellant was travelling with anyone and was told he was not. He asked who the appellant would be giving the drugs to and his answer was to the effect that he did not know, that someone would be waiting in the "meeters and greeters" area at the airport with a card with his name on it and he was to approach that person. He asked what the appellant was carrying and the appellant told him ecstasy and cocaine.
50 By that point the appellant was an extremely upset young man. He was extremely tearful. He asked if Waugh had a puffer for asthma because he said he suffered from it. Waugh did not have a puffer and asked the appellant if he had one in his luggage. He said he did not. Owing to the appellant's deteriorating condition, Waugh asked for airport paramedics to attend. They subsequently arrived and administered oxygen to the appellant. Gradually he appeared to calm down and then appeared to go to sleep. The Customs officers checked on him continuously until the arrival of the Federal Police about 5.30 pm.
51 Although there was no requirement to videotape the frisk search, immediately after it had appeared that the search was positive, Waugh had switched the video on. He left it running the whole time they were in the room and it was still running when the Federal Police arrived.
52 At no time from shortly after 3 pm until the Federal Police arrived at 5.30 pm did the appellant ever tell any of the Customs officers that a threat had been made and would be carried out unless he imported drugs into Australia.
53 The videotape was played in evidence to confirm that.
54 As a result of information from Customs, three Federal Police officers, Federal Agents Peter Brindal, Steve Paynter and Darrin Orreal, went to the Customs area at the airport. They arrived at the airport about 5.15 pm. They were introduced to the appellant and told him they wanted to conduct a videotaped interview ("VROI") with him. The appellant agreed to that. The interview lasted from 5.35 to 7.35 pm. I will return to that shortly.
55 After the interview, the agents drove the appellant to the Federal Police office where forensic officers removed the packages and tested the contents. After that, the appellant was taken to the watch house at 10.45 pm and charged. At no stage did the appellant say he had only transported the drugs because Hodge had threatened him and his parents.
56 The airport interview was commenced by Agent Paynter. He noted that the appellant had been upset and told him that "obviously" he was in a bit of trouble and was saying that he had some narcotics on him and that they were strapped to his groin. The appellant agreed and said that they itched whenever he walked. After some preliminaries, the formal interview commenced. That was conducted by Agent Brindal. He confirmed that the appellant wished to call his mother and advised him of his rights generally. He then said they believed the appellant had narcotics on his person. The appellant said he did have. Paynter said that he would be charged in relation to importing those narcotics. After some further exchanges there was a break during which arrangements were made for the appellant to speak to his mother by telephone in Liverpool.
57 The VROI was suspended to enable the appellant to make a telephone call to his mother. The Customs videotape continued to run during this period. There was discussion between the agents and the appellant as to how this call was to be arranged and at one point the appellant asked whether this was the only time he could speak to his mother. Paynter told him he could speak to her tomorrow because he was going to be in the lock-up that night. The appellant became distressed again. The transcript then records the following:
"A15 I'm just scared.
Q16 If you want to have a good cry, have a good cry, okay, get it right out of your system. There's nothing to be scared of.
A16 How can I get it out of my system.
Q17 Hey?
A17 How can I get it out of my system. It's not an easy thing to do.
Q18 Well there's no doubt that you're in a spot of bother, okay, but the prison's - you'll go to what we call a lock-up, okay, which isn't a prison. It's like they'll hold you there till you go to court, okay. You'll be held there for a couple of days and they'll have a court hearing on ---
A18 A couple of days I'm gonna be there for?
Q19 Yeah, so you can go to court. You're going - you're going to be charged with a serious offence, okay. So I shouldn't really - what did you expect?
A19 ...(indistinct)...
Q20 Hey?
A20 I got forced into it.
Q21 All right. Well you tell us about that in a minute, okay. You can tell us about that in a minute. I'm not - I don't really want to go into the details and I'm speaking to you at this point because I'm trying to keep you - I'm trying to tell you what's going to happen. In fairness to you I can't - surely you must understand that you're in trouble. Surely you must understand that?
A21 I do understand.
Q22 Okay. And once you start understanding that then we're going to move on, okay. You've got to move on and you need to try and keep calm and just work through the issues, okay. Just take it one step at a time. What you need to do, is just need to deal with what's happening at this point in time. Do you understand that? The first thing you're got to deal with is that you're in trouble. Once you've dealt with that then we just start taking it step by step, okay. As I said to you if you do that you'll get through it. You're not going to get into - you're not going to get hurt, okay. You're not going to get beaten up or anything like that. The system's in place. Why are you scared for?
A22 What could happened [sic] to me, because of me mum.
Q23 Well maybe you shouldn't speak - maybe you shouldn't speak to your mum at the moment. Is it going to upset you too much?
A23 I just need to speak to her." (My emphasis).
58 There are then some further exchanges and the Federal Agents discuss amongst themselves the paperwork and arrangements they would need to make, given that it was Christmas Eve. While they were doing this the appellant is heard to say something about "the person that made me do this ..." and Paynter says "Well we'll talk about it in a minute, okay, when the tape - when the interview starts again."
59 Although they had some trouble with the numbers and getting the call through, eventually Paynter was able to speak to the appellant's mother. He explained who he was and that he was calling from Australia. He said that he had her son with him and he wanted to speak to her but warned her that he was upset and was in a bit of trouble. The appellant then spoke to his mother. After a brief conversation, Paynter again spoke to the appellant's mother and told her it was very important that she not speak to the person whose name he had mentioned. He gave her some brief details and then Brindal spoke to her and gave her contact numbers and details in Perth.
60 There was some further discussion between the agents and that portion of the videotaping concluded at 6.30 pm and the formal VROI recommenced.
61 Brindal gave the appellant another caution and then continued:
"Q159 All right Thomas last time we spoke before the call, we were just - I was just about to ask you - can you just tell us in your own words from - from Liverpool to Australia exactly what happened?
A159 When I was asked ---
Q160 Yep. You'll have to talk up too, sorry?
A160 ---I got a plane fare, I got into a bit of debt with a lad over there and I never had the money to pay him. Well, he got a bit pissed off with me like and I ... (indistinct) ... (because I never said him) myself going on and on and on - in the end he said 'Listen you gotta do this'. And he told me all about it and the, the bloke's name ... (indistinct)... (plane fares) he's booked then on - on this flight ... (indistinct) ... (on his mum's card) maybe he's had some guy to ... (indistinct)... do you know what I mean. You know, you know, you know he's paid for the tickets. He paid for them.
Q161 Paid for your tickets?
A161 Yeah.
Q162 Yeah?
A162 He booked them on his wife's mum's card, Visa.
BRINDAL:
Q163 Okay, what I'd like you to do, go through the whole lot and then I'll come back to this okay?
A163 ...(indistinct)...(yeah) yeah, yeah. And then - so anyway he's - so I wasn't to - I wasn't going to do it but in the end and they - I avoided them for two days and then he calls up with me - so in the end I done it. I said 'I'd do it.' And then I've done it and I've been caught.
Q164 Okay, what I need you to do is explain exactly what you did from the beginning where---
A164 (No audible reply)
Do you want me to go through it?
I might go through it from the beginning.
Q165 All right, so you're saying that you got into a debt with a person, is that right?
A165 Yeah.
Q166 And - whereabouts did this person live?
A166 In ...(indistinct)... lives around the corner from mine. (around the corner from my house).
Q167 Do you know whose address?
A167 Yeah, thirty eight, Valentine---
Q168 Valentine? Balentine.
A168 Valentine, yeah.
Q169 Yep?
A169 Norwood(?), I don't know the postcode, 'cause I'm down the corner from him, it is West Derby though.
Q170 West Derby
A170 West Derby or (Tuebrook)...(indistinct)...it's like a ...(indistinct)... (round the corner).
Q171 Okay, and what's this person's name?
A171 Lee HODGE.
Q172 What is it?
A172 Lee HODGE.
Q173 Lee HODGE, all right and tell me what you know about Lee HODGE?
A173 Well he sells drugs, any night(?) of the week.
Q174 How do you know that?
Q175 'Cause I've seen him ... (indistinct)... (do it) they cost ... (indistinct)... (posh cars) and I spoke to him. Just things like, ...(indistinct)... obviously because he's doing this, but he's doing this.
A175 Is he a friend of yours? He's not a friend, I used to knock about with a lad, that used to deal with him. I had to borrow money off them and then, yeah, led to this.
Q176 All right, how much money did you borrow of him?
A176 A thousand quid.
Q177 A thousand dollars?
A177 Yeah.
Q178 All right, and how long have you known Lee for?
A178 Oh, three years.
Q179 Three years. All right, so tell me what discussions took place before you actually did what you did
A179 Oh, he phoned me all one morning, so I had said eh to - I've got a way out of the way and it's money off - so pay it off.
Q180 A thousand dollars?
A180 I said I would think about it ... (indistinct)... (I was really terrified) I think about it ... (indistinct)... which I really told you I was really, you know, terrified just before and then I switched me phone off for two days because he was - they usually - I couldn't bear thinking of doing it and then he knocked - knocked at me house and he started to - he spoke to me and all that and then I opened the door I ended up and said 'Oh, yeah, I'll do it.' And then he took me down to it - yeah his house and booked the tickets on the computer while I was there.
Q181 Okay, we'll just stop you there. When you say he'd asked you to do something, tell us what - what has he asked you to do?
A181 To, he knows someone who lives over here who he said, a few - a few people have done it for him, four people have done it before, a few people. And they've not been caught, and he knows someone over here but I think if I go back, he'd be standing up at - he'd be standing outside the airport with the - with your me name on the thing waiting for me.
Q182 All right, what did he want you to bring over here?
A182 Drugs, Ecstasy and Cocaine." (Emphasis added).
62 In the course of his cross-examination at trial, the appellant was asked a series of questions about why he had not told the interviewing police officers that he had only committed the offences because of the threats made by Hodge. The following exchanges are at t/s 243:
"You remember that when questioned by the police I think you said, and we've heard evidence of it, you said at answer 20 on page 5 of the 25 page transcript, 'I was forced into it'?---Yeah.
And the police officer said to you:
Well, you tell us about that in a minute. You can tell us about that in a minute.
Do you remember him saying that?---Yeah, but at the end of that he says he doesn't really want to go into that.
All right, but I'm just asking the question. You said to him you were forced into it?---Yeah.
He said, 'You can tell us about that in a minute'?---He said, 'You can tell us about that in a minute. I don't really want to go into it,' he said.
Right, but the fact of the matter is through the interview you didn't explain, did you?---No, because they didn't want to know. They just - all they wanted to know was where the drugs were from. That's all they wanted to know. They didn't want to know the basis of that.
You were telling the police what had happened, weren't you?--I tried to, yeah.
But you did not explain that issue?---Because they didn't want to know."
"All right, Thomas, last time we spoke before the call we were just - I was just about to ask you can you tell us in your own words from Liverpool to Australia exactly what happened.
You remember that question?---Yeah.
You were being given a chance to tell your whole story, weren't you?---Yes - no, not really.
Well, the question is, 'Tell us exactly what happened from Liverpool to Australia.' That's the question?---Yeah, well, by the time they didn't really want to go into it so I just really told them the basic story." (Amendments in the original transcript).
64 In addition to the appellant, a psychologist, Dr Philip Watts and the appellant's mother gave evidence.
65 Dr Watts had been asked to conduct an assessment of the appellant at Hakea Remand Centre, which he did on 11 November 2004. He administered a range of tests and conducted an interview with the appellant over about two hours. He concluded the applicant had an IQ of 68, which would be the bottom two per cent of the population. An IQ below 70 is the borderline of intellectual disability and so on the score alone, that would indicate the appellant had a mild intellectual disability. However, Dr Watts believed that the way the appellant approached the tests showed someone who had long-standing learning problems and he tended to give up on test items and could probably do slightly better. He said he would actually put him slightly higher on the borderline range which would mean he was in the bottom three to five per cent of the population. Based on the results of his tests, the interview and his clinical experience, Dr Watts estimated the appellant was at the mid-teen intellectual level and probably functioning about the level a 15-year-old would. On the range of tests, the appellant's weakest results indicated equivalence to maybe a 10 or 11-year-old.
66 Mrs Deborah Morris testified that the appellant left home between the end of October and the beginning of November 2003. He left in what she described as "very angry circumstances". She said his father made him leave. The appellant had been staying off work and his father was not prepared to put up with his attitude and the way he was speaking to his mother and sisters, or that he was staying off work. Earlier his father had given the appellant an ultimatum to either go back to work or go. She said that the appellant did not care, "he hated us. He was going anyway. Never wanted to see us again" and he did leave.
67 She said they had noticed a change over the 2003 year but it became more obvious towards the end. She had noticed mood swings, but he became bitter and was not eating regularly. They had asked him if everything was okay but he would just say he was fine.
68 Mrs Morris did say that they were getting phone calls but when they picked up the receiver the line would go dead. This started around May 2003. She recalled a tall, dark-haired person she had never seen before coming to the house on one occasion, asking for the appellant. She told him the appellant was not there and he left. He came back a few weeks later. Again, she told him the appellant was not there. She said that because the appellant had asked her to.
69 According to Mrs Morris, the appellant lost a lot of weight and began staying off work, although that began because his fellow employees had gone on strike but it went on for a long time.
70 Mrs Morris used to handle the appellant's financial affairs because he did not understand banks. She said he did not understand bills and did not question when money was going out of his bank, nor when statements came in. He just did not understand. He was borrowing to pay off debt all the time and his finances had become very unstable. She did give him money and ultimately that amounted to about [sterling]1000. She saw the broken windscreen on his car and said when the appellant saw it he became hysterical, but said he did not know who had done it, nor why. That was around April or May of 2003. She paid to fix that and the subsequently broken rear windscreen which was smashed approximately between October and November 2003. When she asked the appellant what was going on, he told her to mind her own business.
71 Before turning to her Honour's summing-up, it is convenient to set out the terms of s 10.2 of the Code:
"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat."
72 In her summing-up, her Honour gave entirely appropriate directions about the onus and burden of proof. She emphasised the presumption of innocence and the need for the prosecution to prove its case beyond reasonable doubt. She told the jury that although the appellant did not have to give evidence, he had done so, but that did not mean there was any obligation on him to prove anything. She pointed out that even if they did not believe the appellant's evidence, they could not find against him on an issue if his evidence gave rise to a reasonable doubt about it. Her Honour then explained the charges and said that as a result of the formal admissions made by the appellant, in light of the evidence given, the question had arisen whether or not the appellant was acting under duress. Even so, she said, the onus still remained on the prosecution to prove beyond reasonable doubt that what the appellant did was of his own free will.
73 Her Honour then succinctly summarised what had been put to the jury by the defence and by the prosecution in respect of this issue (at t/s 295 - 296):
"Now, it is not for Mr Morris to prove that he was acting under duress. It is for the Commonwealth to prove that the crime was committed voluntarily as I said, that he had freedom of choice when he committed that crime and here, just to give a bit of a recap, Mr Morris says, 'I was threatened; so was my family. That's why I did it. I owed this man money originally, this man Lee Hodge money originally. This man Lee Hodge is a dangerous, influential drug dealer. I couldn't repay the money; I had no money; I was threatened. Then it got worse. His drug courier was unavailable. She got sick. He wanted a replacement. He used my debt as leverage and threatened me more if I didn't do the job. The fact my debt was wiped out and I had money on top was beside the point. I did it because I was threatened. I imported the drug because I was threatened.'
That is what the defence says to you. What the Commonwealth essentially has said is even if you do believe Mr Morris, firstly, 'There were always ways you could have repaid the debt in the early days. You could have always repaid the debt if you really wanted to do,' and if he believed that the threats were real but he made a choice not to. It went on for a long time without him making any payment and nothing happened to him. He chose not to pay the debt. He had the money if he really wanted to. He had a car. He had a mobile phone which he used extensively and managed to pay the bills. His family lent him money. His mum lent him 300 pounds to buy a ring for his girlfriend as opposed to borrowing money to pay this dangerous drug dealer. Does that add up? This is what the Commonwealth would say to you.
He went to a nightclub on the weekends and that cost, on his evidence, around 200 pounds. Was this really a man who wasn't able to repay the debt if he wanted to? He chose to do the courier work the Commonwealth says because it did repay his debt and he got some money on top. He may have had some reservations about doing it but at the end of the day the Commonwealth would say he did it of his own free choice so you have those two stories but again they're not competing stories because it's always the Commonwealth who had to prove matters beyond a reasonable doubt.
I told you a little while ago, don't speculate and one of the things you may speculate about or may have big question marks about is what really was the relationship between Lee Hodge and Mr Morris? What really was this relationship because there may be some unanswered questions, but as I have said, don't go there. Don't guess or speculate or look at theories unsupported by the evidence. Simply look at what you've heard in this court and make your decision on that.
The defence says Lee Hodge was a man who used violent tactics. He smashed the windscreen on two occasions; he held a gun to Mr Morris's back. He struck Mr Morris with a baton but the Commonwealth would say to you the scare tactics were never, ever, likely to be carried out. The threat to terrorise or bomb, however Mr Morris interpreted it, didn't get carried out and this is a person who may have made threats on one hand but also provided soccer tickets on the other hand but look at it all but never lose sight that the Commonwealth must exclude to your satisfaction beyond reasonable doubt that Mr Morris was not acting under duress at the time the crime was committed and that is the time of the importation."
74 Her Honour then turned more specifically to how duress might operate in the circumstances of the case. She explained that there were three requirements, each of which had to be present for duress to operate in favour of the appellant. Thus, if the prosecution satisfied the jury beyond reasonable doubt that any one of them was not present, then duress would not be available to exculpate the appellant. She said the first requirement was that the appellant must reasonably believe a threat has been made which would be carried out if the offence was not committed. In that regard, she explained that the jury needed to ask whether the appellant imported the drugs because he feared that the threat to terrorise himself and his family would actually be carried out; or was the offence committed so he could repay his debt and so rid himself of the problems he was having with Hodge, and to make a bit of money as well. Her Honour described the second requirement as being no reasonable way the threat could be rendered ineffective. In other words, she said, could something reasonably have been done by the appellant to neutralise the threats. Putting it another way, she said that the prosecution had to satisfy the jury that the threat was avoidable, that is that the appellant failed to take advantage of an opportunity or opportunities reasonably open to him to render the threat ineffective or to avoid it. The third matter, her Honour said, was whether the importation of drugs by the appellant was a reasonable response to the threat to terrorise him and his family; was there a proportionality between the threat and the offence.
75 Her Honour then said that in all three of these requirements, what the jury had to look at was reasonable responses, which is an objective standard. She said it is what is reasonable in all the circumstances and the question is whether an ordinary person of the same age, sex and maturity of the appellant would reasonably have dealt with the threat the way the appellant did.
76 A little later her Honour gave the direction which is challenged in the ground of appeal.
77 Following her Honour's directions to the jury, counsel raised a number of matters with her. The only one of present relevance however, is the direction to which I have just referred. Counsel for the appellant raised it as a matter of concern, but expressed the view that it could not be corrected by any direction her Honour might give. He pointed out that the High Court had indicated a direction in those terms was a serious misdirection and had the effect of reversing the onus of proof. The Crown prosecutor suggested her Honour might consider giving a further direction on that, but her Honour declined. She said she thought that looking at the charge overall, there could be no doubt in the jury's minds where the burden of proof lay.
78 At trial, both counsel accepted that the test of reasonableness in s 10.2 of the Code is to be applied with regard to the personal characteristics of an accused, including his or her age, sex and maturity. No point about that was taken by either party on the appeal and neither party made reference in their submissions or lists of authorities to Oblach v The Queen [2005] NSWCCA 440; (2005) 195 FLR 212, delivered on 15 December 2005, in which the point had been considered.
79 It was submitted in Oblach that the expression "reasonably believes" in s 10.2 of the Code sets a subjective test, so that in considering what the accused him or herself might have reasonably believed in all the circumstances, account must be taken of all of those personal characteristics of the accused which might have affected his or her appreciation of those circumstances.
80 The Court held (Spigelman CJ and Holmes J) that the words "reasonably believes" in s 10.2 required that the actual belief held by the accused must be objectively justifiable, taking into account the accused's objective circumstances but not his or her personal circumstances, nor the circumstances as the accused perceived them to be.
81 The Chief Justice reached this conclusion having regard to the textual context of Ch 2 of the Code in which s 10.2 appears, and to the commentary on the draft section which became s 10.2 in the report of the Criminal Law Officers' Committee of the Standing Committee of Attorneys-General entitled "Model Criminal Code Chapter 2: General Principles of Criminal Responsibility Final Report December 1992". His Honour extracted the following propositions from the text of s 10.2 (at [55]):
"1 Section 10.2 applies to negative criminal responsibility where a person 'carries out conduct' with a particular state of mind.
2 That state of mind must constitute a belief in the mind of that person and, in that sense, is subjective.
3 The qualification introduced by the word 'reasonably' introduces a determinative objective element that qualifies each of the succeeding paragraphs.
4 Paragraph 10.2(2)(a) contains no internal objective element. Pursuant to it the 'reasonable belief' must attend both the fact that 'a threat has been made' and the fact that it 'will be carried out'.
5 Paragraphs 10.2(2)(b) and (c) each adopt the word 'reasonable' to apply an objective test to the elements of necessity and proportionality of response, respectively."
82 Finally, his Honour said (at [60]) that he was reinforced in his conclusion by the fact that the words "as he or she perceived them to be" were expressly adopted in s 10.4(2) of the Code. It was accordingly not appropriate to interpret the words "reasonably believes" in either s 10.2 or s 10.3 to encompass a formulation which the very next section of the Code expressly deploys.
83 Sully J said it was clear enough the words "reasonably believes" convey an imperative requirement that the accused must in fact have a belief in the existence of each of the three factors stipulated in subs (2)(a), (b) and (c), and that it is equally clear each such actual belief is also required to be a reasonable belief on the part of the accused. He concluded (at [74] and [81]) that the statutory test entailed an inquiry into the question whether each such requisite belief in fact held by the accused was held reasonably by him or her in the sense that each belief would have been held by any ordinary person in the position of the accused then.
84 Holmes J agreed the section imports both subjective and objective considerations. The accused must have an actual belief, but one which is objectively reasonable. It must be taken that the difference in wording between s 10.2 and s 10.3 on the one hand and s 10.4 on the other, was deliberate. The latter refers expressly to circumstances being "as he or she perceives them to be", whereas those words do not appear in s 10.2 or s 10.3. His Honour held therefore that it must follow that such personal characteristics as may influence the formation of beliefs are irrelevant; the test of the reasonableness of belief under s 10.2(2) and s 10.3(2) is thus entirely objective.
85 I presently agree that the focus of s 10.2 on the conduct and state of mind of the accused is not consistent with a "reasonable person" test and that the test must be applied having regard to the accused's objective circumstances (per Spigelman CJ at [57]), that is to say, as entailing an inquiry whether each requisite belief in fact held by the accused was held reasonably in the sense that each belief would have been held by an ordinary person in the accused's then position (per Sully J at [74] and [81]). However, as the point was not argued before us, it is not appropriate to express any final view on it in this case, and I do not do so.
86 Of course, if the Oblach construction of s 10.2 is correct, it would follow that it was an error for her Honour here to pose the test of the reasonableness of the appellant's response by reference to an ordinary person of the same age, sex and maturity of the appellant. However, that direction is not the subject of a ground of appeal and in any event it would have resulted in no miscarriage of justice so far as the appellant was concerned, because it was significantly more favourable to him than a direction in accordance with Oblach would have been.
87 In Robinson v The Queen, the trial Judge had directed the jury that:
"... on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, 'Well, this witness has a particular interest in the outcome of his case. We should look at his or her evidence closely, more closely than perhaps we would look at others.' That is a matter you have to bear in mind when scrutinising a particular witness's evidence."
88 Later, his Honour gave a further similar direction to the effect that if they thought a witness had a large interest in the outcome they might well conclude they should scrutinise that witness' evidence closely and that they might think:
"... that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."
89 The Judge was asked to give a redirection, not to withdraw his direction about the accused having an interest in the outcome of the case but to include a direction that the complainant also had an interest in the outcome. His Honour gave a direction in those terms.
90 As to these directions, the High Court, (Mason CJ, Brennan, Deane, Toohey and McHugh JJ) said (at 535):
"Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible to escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness in the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of the complainant against that of the accused."
"Furthermore, his Honour's directions on the point do not sit well with the presumption of innocence which is the consequence of a plea of not guilty. If that presumption is to have any real effect in a criminal trial, the jury must act on the basis that the accused is presumed innocent of the acts which are the subject of the indictment until they are satisfied beyond reasonable doubt that he or she is guilty of those acts. To hold that, despite the plea of not guilty, any evidence of the accused denying those acts is to be the subject of close scrutiny because of his or her interest in the outcome of the case is to undermine the benefit which that presumption gives to an accused person."
92 Finally, for present purposes, their Honours said (at 536):
"... to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person. Except in the most exceptional case, such a direction inevitably disadvantages the evidence of the accused when it is in conflict with the evidence for the Crown.
It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinized more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence." (Emphasis added)
93 The principle was reaffirmed by the High Court in unequivocal terms, in Stafford v The Queen (1993) 67 ALJR 510 and Ramey v The Queen (1994) 68 ALJR 917. Both were cases in which special leave to appeal was refused, so the comments made were obiter, but nonetheless it is clear (as Callaway JA pointed out in Haggag [1998] VSC 355; (1998) 101 A Crim R 593 at 597) the Court intended to give firm guidance concerning the application of Robinson.
94 In Stafford, Deane, Dawson and Toohey JJ said:
"It follows from a decision of this Court in Robinson v The Queen ... that a trial Judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial Judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily ... it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial."
95 In Ramey v The Queen (1994) 68 ALJR 917, Brennan, Dawson and McHugh JJ said:
"There can, and should, be no mistake as to the application of the principle laid down by this Court in Robinson v The Queen ... It is not to be eroded by Courts of Criminal Appeal nor, a fortiori, by trial judges by failing faithfully to apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case."
96 Callaway JA (with whom Phillips CJ and Kenny JA agreed) in Haggag observed that three points emerged from those three judgments. The first is that a reference to evaluating the evidence of an accused on the basis of his or her interest in the outcome of the case does not mean solely or even mainly on that basis. A trial Judge should not direct a jury that the interest of an accused in the outcome of the trial is even a factor to be taken into account in assessing his or her evidence. Secondly, the prohibition is not confined to directions that the jury must or must not do something but extends to an invitation by the Judge to assess the reliability of the accused's evidence by reference to interest in the outcome of the trial. The third is that Robinson does not depend on its particular facts but stands for a rigorous principle to be faithfully applied.
97 The foregoing authorities were discussed and applied by this Court in Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65 (per Steytler P, Roberts-Smith and McLure JJA agreeing, at [19] - [37]; Roberts-Smith JA at [95] - [103]). In that case the conviction was quashed because the trial Judge gave a direction that in weighing the testimony of a witness the jury could take into account his or her relationship to the complainant and his or her interest in the outcome of the trial. It was held that would necessarily be taken by the jury as a reference to the interest the applicant had in an acquittal.
98 There is no question that her Honour's direction here was a clear contravention of Robinson. Although it was a direction given in the context of the assessment of witnesses generally, there was nothing oblique about her Honour's reference to the appellant and his mother. She emphasised that they were "the key players ... more so that the Federal Police" and that the jury did have to look at "what interest they may have in the outcome ...".
99 In Etherton, the miscarriage was held to be fundamental and to exclude the application of the proviso (s 30(4) Criminal Appeals Act 2004).
100 Here the respondent submits the proviso should be applied because this is the "most exceptional case" referred to by the High Court in Robinson (at 536) in which the direction did not disadvantage the evidence of the appellant "when it is in conflict with the evidence of the [prosecution]". That is said to be so because, it is submitted, the evidence of the appellant was not in conflict with that of the prosecution, and that even taking the appellant's evidence at its highest, the jury must still inevitably have been satisfied beyond reasonable doubt that the Commonwealth had negatived duress. This in turn is said to be because even if the appellant did have an actual belief there was no reasonable way the threat could be rendered ineffective, given the opportunities he had to tell the authorities of Hodge's threats, such a belief could never have been objectively reasonable.
101 In considering the application of the proviso to the determination of an appeal, this Court is not to attempt to predict what the trial jury, or some hypothetical future jury, would or might do. The task is rather to decide what the statute stipulates, namely whether "a substantial miscarriage of justice has actually occurred" (per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ in Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444; 223 ALR 662, at [35]). As to that, the Court said in Weiss, at [39]:
"Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt."
"That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524-525 per Barwick CJ; Storey [1978] HCA 39; (1978) 140 CLR 364 at 376 per Barwick CJ; Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at 631-633) [121]- [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty."
103 The Court drew particular attention to the requirement that the appellate court's task must be undertaken on the whole record of the trial, including the fact that the jury returned a guilty verdict, and that the accusatorial character of criminal trials and the fact that the standard of proof is beyond reasonable doubt, must always be kept at the forefront of consideration (ibid, [43]). Their Honours said one negative proposition which could safely be offered was that it cannot be said no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded the evidence properly admitted at trial proved beyond reasonable doubt the accused's guilt of the offence upon which the jury returned its verdict of guilty (ibid, [44]). Even in that circumstance however, there may be cases in which it would be proper for an appellate court not to dismiss an appeal. Such case may include those in which there has been a significant denial of procedural fairness at trial (ibid, [45]).
104 Whilst it is readily understandable why, as a matter of public policy, a conviction obtained in breach of a fundamental requirement of fairness at trial should be set aside despite the appellate court being satisfied the evidence established the accused's guilt beyond reasonable doubt, it is difficult to see why that result should necessarily follow in those circumstances, from an erroneous direction. That would not seem to me to be something that would be a fundamental error as to go to the root of the trial process (Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 372 - 373). That question may, however, be left for another day, as in my opinion this appeal does not turn on it.
105 Both counsel agreed that the element of proportionality embodied in s 10.2(c) was not an issue at trial.
106 The primary position of the prosecution was that s 10.2(b) was negatived on the evidence, although it was put to the appellant (t/s 249) that there had in fact been no threat made to him by Hodge - a suggestion he denied. Beyond that question, the prosecution did not seriously challenge the existence of the threat, nor that the appellant had a reasonable belief it would be carried out. Perhaps somewhat inconsistently with that, it was strongly put by the prosecution that the appellant's real motive was money - the wiping out of his debt to Hodge, plus an additional payment to him of [sterling]1000. The central thrust of the prosecution case though, was that on his own evidence the appellant had numerous opportunities to report the matter to the police or other authorities, but did not do so.
107 On the appellant's evidence, the first time Hodge made a threat to "terrorise" him or his parents, was in April or May 2003, at the soccer match. That threat was made to intimidate the appellant into paying what he owed to Hodge. It was not until the end of September 2003 that Hodge told him he could pay off the debt by taking drugs to Australia. It was put to him on the basis that he either paid the money or did the drug run. At that stage he had the choice - although, of course, on his evidence, he had no money to pay the debt anyway. The prosecution contended he could have borrowed it from his parents, who had loaned him money and continued to give him some financial support. His answer to that was that he already owed them about [sterling]1000 and could not ask them for more, particularly as relations between them were increasingly acrimonious. He said he did not tell the police then because he was scared. By then too, Hodge had already hit him with a baton.
108 The point made by the respondent is that at the latest since the end of September 2003, the appellant knew what Hodge wanted him to do and that, on his own account, he would have no prospect of paying the money instead. Some three weeks passed before the window of his car was smashed (for the second time) and he was told to leave his parents' home. He had the opportunity to talk to the police over that period as he did between the end of October and 20 December 2003, when Hodge arrived at his flat. Although Hodge was with him at times over the next three days, there was still occasions on which the appellant was away from him and had opportunities to talk to the police.
109 His next opportunity was once he entered the international departure area at Manchester Airport. Hodge could not accompany him in there, and the appellant had to wait 21/2 hours for his flight. There were police and Customs officers whom he could have told.
110 The prosecution accepted it was objectively reasonable for the appellant not to have disclosed his situation to authorities whilst in transit in Singapore, but contended he had an opportunity to do so, if not on the aircraft out of Singapore, certainly to the Customs officers on arrival in Australia.
111 The appellant did not dispute that he had these opportunities, but said he was too scared to tell anyone.
112 The requirement that an accused believe that there is no reasonable way the threat can be rendered ineffective is not one to be met too readily. There are clear considerations of public policy dictating that people under threat should take opportunities to render such threats ineffective by reporting their circumstances to police or other appropriate authorities, rather than commit serious criminal offences, when presented with realistic opportunities to do so. Likewise, it could not be accepted as objectively reasonable in the circumstances of this case, that the law enforcement authorities could not have acted to safeguard the appellant and his parents against the threats made by Hodge, as the appellant understood them. On the evidence it might well be accepted that Hodge had threatened the appellant in the way described and that the appellant had a reasonable belief the threat would be carried out and that his conduct was an objectively reasonable response to the threat (in that it was proportionate). But I am driven to accept the respondent's submission that on the appellant's own evidence, taken at its highest, there could be no reasonable doubt that the prosecution had established that his belief that there was no reasonable way the threat could be rendered ineffective, was objectively unreasonable. On that finding, duress under s 10.2 of the Code could not have availed the appellant - and as there was otherwise no contest about the elements of the offence, his conviction was inevitable.
113 When to that conclusion is added the effect of the acceptance by the prosecution at trial that the objective reasonableness of the appellant's belief was to be determined having regard to an ordinary person with the personal characteristics of the appellant, including his age, sex and maturity (and that her Honour directed the jury in that way), it seems to me this case does fall into that category of "the most exceptional case" referred to by the High Court in Robinson (at 536).
114 The fact that the jury returned a verdict of guilty notwithstanding that direction is significant (Weiss, [43]). There was a deal of evidence concerning the personal characteristics of the appellant. He was 19-years-old. He did poorly at school. He had learning difficulties. His mental age was years younger than his chronological age. He had little understanding of even basic money matters and the evidence was that he could not cope with them. He was apparently of no great fortitude. The tapes reveal he has a broad Liverpudlian accent which most of the time is very difficult to understand. Even so, it is apparent from both the Customs video and the Federal Police video that he was genuinely distraught by his predicament. Given all of this, the test of objective reasonableness left to the jury by her Honour was likely to have weighed very heavily in his favour, yet the jury still returned a verdict of guilty.
115 There are many circumstances in this case which generate strong sympathy for the appellant in the predicament in which he found himself, but as her Honour correctly directed the jury, the law required them to put feelings of sympathy or prejudice aside, and decide the case on the application of the law to the facts as they found them to be.
116 Having made that independent assessment of the whole of the evidence which the proviso requires, I am satisfied the appellant was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty, and notwithstanding the error of law made by the misdirection given by the trial Judge, there was no substantial miscarriage of justice.
118 McLURE JA: I agree with Roberts-Smith JA that the appeal should be dismissed. However, I propose to state my own reasons for that conclusion. The relevant facts are detailed elsewhere and not repeated here unless required for an understanding of these reasons.
119 The appellant was convicted after trial of one count of importing not less than the trafficable quantity of ecstasy and one count of importing not
less than the trafficable quantity of cocaine contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The appellant gave evidence at trial. The only issue at trial was whether the appellant had acted under duress.
120 Section 10.2 of the Criminal Code Act 1995 (Cth) ("the Code") provides:
"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does 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 carrying out conduct of the kind actually carried out."
121 The trial was conducted on the basis that subs (3) of s 10.2 did not arise on the facts.
122 The trial Judge directed the jury that they should consider the interest of the witnesses, including the appellant, in the outcome of the case. After referring to the appellant's prior good character the trial Judge said:
"A lot of it is going to depend in this case on credibility or believability, reliability of what a witness says to you. You are the sole judges of the credibility of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness you should consider his interest or her interest in the outcome of the case. You have the Federal Police having a certain point of view. You have [the appellant]. You have [the appellant's] mother. They are really the key players in this, perhaps [the appellant] and his mum more than the Federal Police, but you do have to look at what interest they may have in the outcome, their manner of testifying."
123 The appellant contends this direction gives rise to a miscarriage of justice.
124 Save in exceptional cases, trial judges are prohibited from giving a direction to evaluate the evidence of an accused on the basis of the accused's interest in the outcome of the case: Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 at 535 - 536; Stafford v The Queen (1993) 67 ALJR 510; Ramey v The Queen (1994) 68 ALJR 917; Etherton v The State of Western Australia [2005] WASCA 83; (2005) 30 WAR 65. The only exceptional case identified in the authorities is where a reference to the accused's interest in the outcome is in the accused's favour: Robinson at 536; Stafford at 510 - 511.
125 The Crown contended this was an exceptional case to which the general rule did not apply because there was no conflict of evidence. It is the case that the appellant's evidence relating to duress was not in conflict with other evidence adduced at trial. However, there is no basis in principle for confining the general rule in the way contended for by the Crown. The appellant's credibility was central to the defence of duress which had to fail if the jury rejected his evidence. Although the legal onus of proof is on the prosecution, an accused bears an evidential onus of eliciting evidence of duress.
126 The Crown made a passing challenge to the appellant's evidence that there was a threat (at T 249). However, the Crown's primary challenge appeared to concern the appellant's reason for committing the offences and the connection between Hodge's threats and the repayment of money the appellant had borrowed from Hodge in late 2002. This emerges from the following cross-examination of the appellant:
"What I'm going to suggest to you, Mr Morris, is that what Hodge wanted was his money back. That's what he wanted, didn't he?---Mm.
And he was putting pressure on you to pay that money back?---Yes.
But the way out of it - the way to pay it back was to take drugs to Australia. Is that right?---Yeah, that's the only way. I couldn't afford the money.
That's what you're saying?---Yeah.
But what I'm saying to you is you did it to have the debt paid off and to be paid [sterling]1000?---I never.
That's why you did it?---I never.
The pressure was to pay off the debt?---It wasn't.
The pressure was to pay off the debt?---It wasn't.
You were going to pay it off by taking drugs to Australia?---It wasn't.
What you did was you took the easy option to pay off this debt by getting - by taking drugs to Australia?---I never.
It was going to help you because you were going to get a [sterling]1000 to use for something else as well?---The money wasn't - I didn't care about the money.
There wasn't a threat in relation to taking the drugs to Australia because that was the way to deal with the debt. Is that right?---No."
127 It appears the Crown case was that the threats (the source of pressure) related to the appellant paying off his indebtedness to Hodge; that the appellant committed the offences in order to repay the debt; and that the appellant had access to money to repay the debt. The Crown submitted that put in issue all of the requirements in pars (a), (b) and (c) of s 10.2(2). In particular, the Crown contended there was evidence that the appellant had the capacity to repay the debt, in which event there was a reasonable way the threat could be rendered ineffective, and couriering the drugs was not a reasonable response to the threat.
128 The appellant's evidence at its highest, establishes the following. The proposition that the appellant courier drugs was first raised by Hodge with the appellant in September 2003. Threats of violence preceded that. Within four weeks of Hodge lending [sterling]1000 to the appellant in late 2002, the appellant was in default. In January or February 2003 Hodge told the appellant he had two weeks to pay the money owing "or you're dead" and in April or May 2003 Hodge threatened to "terrorise" the appellant or his parents if the debt was not paid. The appellant understood that to mean Hodge would blow up his parents' house where he was then living. The threats were not carried out. However, in April 2003 the side window of the appellant's car was smashed. At no time did the appellant make further repayments of the loan.
129 In September 2003 Hodge hit the appellant across the head with a baton when the appellant informed him that he did not have the money to repay Hodge. Hodge then drove the appellant to Hodge's house where he showed him ecstasy and cocaine and told the appellant he could deliver the drugs to Australia for him. On this occasion Hodge left the matter on the basis that he wanted the money otherwise the appellant would be taking the drugs to Australia. Three weeks later the rear window of the appellant's car was smashed. At the end of October 2003 the appellant moved out of his parents house.
130 Some time later, Hodge went to where the appellant was living. At Hodge's insistence, the appellant accompanied Hodge to his home. This was around 20 December 2003. Hodge showed the appellant the packages of drugs he said the appellant would be taking to Australia. Hodge then said he would take the appellant back to his flat to get the appellant's passport. In examination in chief the appellant was then referred to his earlier evidence to the effect that Hodge told him he would be taking the drugs to Perth. The examination continued:
"What did you say?---'No'.
What did he say?---He said, 'You're doing it'. I said, 'I can't. No Way,' and he said, 'We'll just go back to the flat first, go back to the flat and we'll think about it then,' and then as I'm leaving out the way to the door, out the hall he
Speak up?---As I was leaving he was behind me and he put a gun to my back.
...
Did he say anything?---Yes. He said, 'You're doing it. I'm sick of this shit. You're doing it. You've got to stop pissing me off'."
131 Hodge made no further threats of any kind to the appellant. Hodge and the appellant then went to the appellant's flat to get his passport and returned to Hodge's house where he booked and paid for the appellant's airline ticket. The appellant then left Hodge's house alone to pick up a suitcase from a friend of Hodge and returned to his flat. The next day Hodge and the appellant went to a sports shop to purchase cycling shorts which the appellant was to wear on the flight to Australia in order to conceal the drugs. They returned to Hodge's house where Hodge prepared and packaged the drugs. The appellant dressed as he would for the flight to ascertain whether the drugs could be seen under his clothes. Thereafter the appellant returned to his flat alone and was picked up by Hodge at 5 am the next morning and taken to the airport. The appellant was alone (without Hodge) for about 21/2 hours before the flight departed for Australia.
132 The appellant's evidence was that he agreed to, and did, carry the drugs to Australia because he believed that Hodge or his associates would kill him or his parents. He rejected the Crown's propositions that the threats related to payment of the debt and that he had (or had access to) the means to repay the debt.
133 It is apparent from this short survey of the evidence that the Crown challenged central pillars of the appellant's evidence on duress namely the subject matter of the threats and the reason for him committing the offences. In the circumstances, there is no basis for concluding that this is an exceptional case to which the general rule has no application. However, that is not the end of the matter. The Crown also contended that there was no miscarriage of justice (and no substantial miscarriage of justice) because, accepting the appellant's evidence at its highest, it was not open to a properly instructed jury to find that the appellant committed the offences under duress. Before going to that question it is necessary to refer to the legal principles governing the disposition of this matter.
134 The appellant was aged 19 when he committed the offence. He left school at 16. He qualified and worked as a carpenter. As a result of an interview and tests conducted over two hours, a psychologist estimated the appellant was at the mid-teen intellectual level and probably functioning as a 15-year-old. I will assume in the appellant's favour that the jury accepted the expert evidence.
135 For the defence of duress to apply, the accused must believe each of the matters in pars (a), (b) and (c) of s 10.2(2). That is, the appellant must believe that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
136 Further, the accused's belief as to each matter must be reasonably held. At trial and in the appeal both parties accepted that the test of reasonableness was determined by reference to a person of the same age, gender and maturity as the appellant in the circumstances in which he found himself. This approach is consistent with the common law defence of duress as articulated by Hunt CJ in R v Abusafiah (1991) 24 NSWLR 531 at 544 - 546.
137 However, it is inconsistent with the conclusion of the New South Wales Court of Appeal in Oblach v The Queen [2005] NSWCCA 440; (2005) 195 FLR 212 as to the proper construction of s 10.2(2) of the Code. As I read the judgments, the Court is unanimously of the opinion that an accused's belief must be objectively reasonable having regard to the circumstances in which the offender found himself but without regard to any of the personal characteristics of the particular accused. In reaching this conclusion the New South Wales Court of Appeal placed great weight on the different terminology in the self defence provision in s 10.4(2) of the Code.
138 The Oblach test is stricter than the objective hypothetical ordinary person test that applies in the law of provocation as stated by the High Court in Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312 at 327. The High Court concluded (at 329) that considerations of fairness and common sense dictated that, in at least some circumstances, the age (in the sense of immaturity) of an accused should be attributed to the ordinary person of the objective test but that qualification did not extend to gender (at 331).
139 Further, leaving to one side broader contextual considerations, the words "reasonably believes" in s 10.2(2) prima facie connote what an accused himself might reasonably believe in all the circumstances in which he found himself, having regard to the personal characteristics of the particular accused: Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88 at 146 per Mason J; Conlon (1993) 69 A Crim R 92 at 98 - 99 per Hunt CJ.
140 The Court referred counsel to Oblach at the hearing of the appeal. However, neither party made submissions at the hearing or subsequently as to the correctness of that decision. In those circumstances it is undesirable for this Court to determine the question unless required to do so. As I have reached the conclusion that the outcome of the appeal is unaffected by whether or not any regard can be had to the personal characteristics of the accused, it is unnecessary to determine the question.
141 The first issue is whether it was open to a reasonable jury to find, even as a reasonable possibility, that the appellant reasonably believed that a threat had been made that would be carried out unless an offence was committed.
142 Section 10.2 does not in terms limit the threat of harm to particular persons or limit the context, nature or timing of the threats. Satisfaction of the requirements of duress will depend on the circumstances of each case.
143 It is apparent from the language of s 10.2(1) and s 10.2(2)(a) that the conduct constituting the duress (that is, the threat or threats) must have caused an accused to commit the particular offence in question, in this case importing ecstasy and cocaine into Australia. Thus, the threat must be operative at the time the offence was committed and induce the commission of the offence. This is consistent with the common law.
144 The threats made by Hodge prior to September 2003 had no relevant connection with the offences committed by the appellant. If looked at in isolation, they would be incapable of providing a factual foundation for excusing the appellant's conduct in couriering drugs. However, the earlier threats and other conduct may provide contextual relevance where, as in this case, it was open to the jury to conclude that Hodge's conduct in December 2003, in particular his use of a gun, involved a threat of harm which would be carried out if the appellant refused to agree to, and carry out, the conduct constituting the offences.
145 The starting point of the analysis is the appellant's evidence of what he believed. His evidence was in substance that he believed Hodge, or his "dangerous" associates, would kill the appellant or his parents unless he committed the offences (T 167 and T 179). He said the threat to his parents was based on Hodge's threat in April or May 2003 that he would "terrorise" his family which the appellant said he understood to mean that Hodge would blow up his parents' house. Assuming the appellant's evidence is accepted, the next question is whether it was open to find that the appellant's belief was reasonable.
146 There are different components to his belief. The appellant's evidence of Hodge's use of the gun is capable of providing an adequate foundation to imply a threat of future serious personal injury to the appellant if he did not commit the offences. However, the connection with his parents is significantly more remote. That depends upon a threat made in April or May 2003 to secure repayment of the debt which threat had no textual or temporal connection with the offences.
147 In my view it was not open to a jury to find, even as a reasonable possibility, that the appellant's belief that his parents would be harmed if he did not commit the offences was reasonably held by him. The threats were made many months before in order to obtain payment of the debt. The appellant did not inform his parents of the threat and he made no attempts to repay the debt. The threat itself was ambiguous and there was no other conduct to justify a reasonably based belief that Hodge or his associates would act to harm the appellant's parents.
148 Finally, the appellant's belief that Hodge had dangerous associates was based on the way Hodge treated the appellant and the fact that Hodge was in the business of selling drugs (T 168 and T 179). That is an inadequate evidential basis to reasonably conclude that Hodge could give effect to his threat through associates. The appellant's belief was based on speculation.
149 Indeed, the historical context tends to support a conclusion that Hodge was prepared to make threats of serious personal injury or property damage but was not prepared to carry out the threats. Only minor damage was attributed by the appellant to Hodge (two broken car windows and minor cuts from a hit on the head). Further, the appellant's continuing failure over an extended period to make any attempt to regularise his repayment of the loan or inform his parents of the situation suggests he had no belief that Hodge would carry out, or cause to be carried out, any threat of serious personal injury to the appellant or his parents. However, I will proceed on the basis that the Crown did not exclude the possibility that the appellant reasonably believed that Hodge threatened serious personal injury to the appellant which would be carried out unless the appellant committed the offences.
150 There is a link between the matters in pars (b) and (c) of s 10.2(2) of the Code. If there is a reasonable way a threat can be rendered ineffective, the commission of an offence cannot be a reasonable response to the threat. However, there may be no reasonable way a threat could be rendered ineffective yet the offence be an unreasonable response to the threat. In that context par (c) deals with proportionality.
151 In this case the harm the subject of the threat was not imminent. The use of the gun in the factual context can only be an implied threat of future harm. This last threat was made three or four days before the appellant committed the offences in which time the appellant had many opportunities to report Hodge's conduct to law enforcement authorities and seek their protection.
152 The appellant's explanation for his failure to go to the authorities was limited to the threat to his family and his belief that Hodge "knew a lot of dangerous people". I have concluded that it was not open to find, even as a reasonable possibility, that the appellant's belief about these matters was reasonably held by him. Even if I am wrong in that regard, I am satisfied that it was not open to the jury to find that par (b) had been satisfied.
153 Section 10.2(2)(b) reflects the common law: R v Abusafiah at 538. The most obvious and prima facie appropriate means of rendering the threat made by Hodge ineffective would be to report the matter to, and obtain the protection of, law enforcement authorities. However, there appears to be some difference of view as to the consequence of an accused's failure to avail himself of such opportunities: see R v Hudson [1971] EWCA Crim 2; [1971] 2 QB 202 at 207; R v Williamson [1972] 2 NSWLR 281 at 300; R v Lawrence [1980] 1 NSWLR 122 at 165; R v Brown (1986) 43 SASR 33 at 40.
154 Section 10.2 must be construed against the background of the strong policy considerations in this area of the law. Gleeson CJ (as he then was) referred to them in Rogers (1996) 86 A Crim R 542 in the context of the defence of necessity. The observations are also relevant in this context. In that case, the offender was convicted of escaping from prison. His defence was that he feared a life threatening attack in prison. Gleeson CJ said (at 546):
"The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed."
155 These policy considerations are reflected in the approach of King CJ in R v Brown. The issue in that case was whether there was sufficient evidence fit to be left to the jury as to whether the accused who was in possession of prohibited imports (drugs) was acting under duress. As stated by King CJ (at 40):
"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 neutralizing 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.
The cases Reg. v Hudson and Goddard v Osborne show that in particular situations an opportunity to seek the protection of the authorities may not be an effective way of neutralizing the threat. It would be naïve to ignore the existence of situations in which no amount of police protection would be effective or in which it would be unreasonable to expect a person to avail himself of such protection. But such situations must be considered to be the exception."
156 I respectfully agree with these observations. There was nothing in the nature or circumstances of Hodge's offending to suggest he (and his associates) could not be neutralised. To the contrary, the appellant's evidence of his history of dealings with Hodge to which I have referred supports a positive finding that police protection would be effective and that the appellant ought to have known that to be so. I am satisfied that, even having regard to the appellant's chronological age, gender and maturity, it was not open to the jury to find, even as a reasonable possibility, that the appellant reasonably believed there was no reasonable way that Hodge's threat could be rendered ineffective. It follows the appellant could not reasonably believe that his conduct was a reasonable response to the threat.
157 Accordingly, the misdirection does not give rise to a miscarriage of justice and the appeal must fail. In these circumstances it is unnecessary to consider whether, and if so how, the reasoning of the High Court in Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 applies when a misdirection of this nature gives rise to a miscarriage of justice. I would dismiss the appeal.
158 BUSS JA: The relevant facts and the ground of appeal are set out in the reasons of Roberts-Smith JA. Some relevant facts are also set out in the reasons of McLure JA. I agree with their Honours that the appeal should be dismissed. My reasons are set out below.
The learned Judge's direction in relation to the interest of the witnesses, including the appellant, in the outcome of the case
159 The learned Judge, Crisford DCJ, directed the jury that in evaluating the evidence of the witnesses, including the appellant, they should consider his or her interest in the outcome of the case. Her Honour said:
"A lot of it is going to depend in this case on credibility or believability, reliability of what a witness says to you. You are the sole judges of the credibility of each witness and the weight to be given to his or her testimony. In weighing the testimony of a witness you should consider his interest or her interest in the outcome of the case. You have the Federal Police having a certain point of view. You have [the appellant]. You have [the appellant's] mother. They are really the key players in this, perhaps [the appellant] and his mum more than the Federal Police, but you do have to look at what interest they may have in the outcome, their manner of testifying."
160 I agree with McLure JA, for the reasons she has given, that this direction breached the principle laid down by the High Court in Robinson v The Queen [1991] HCA 38; (1991) 180 CLR 531 at 535 - 536, and reiterated in Stafford v The Queen (1993) 67 ALJR 510 at 510 - 511 and Ramey v The Queen (1994) 68 ALJR 917. A trial Judge is prohibited, unless the circumstances are most exceptional, from giving a direction to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the case. I also agree with McLure JA, for the reasons she has given, that the "exceptional" cases referred to in Robinson, at 536, and Stafford, at 510 - 511, are concerned with circumstances in which some reference to the accused's interest in the outcome is required as a matter of fairness to the accused. In my opinion, the circumstances of the case under appeal are not exceptional in the sense contemplated in Robinson and Stafford.
161 The learned Judge's direction, in relation to the interest of the witnesses, including the appellant, in the outcome of the case, was therefore a misdirection.
162 It is necessary to consider whether the misdirection occasioned a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act 2004 (WA) (as alleged in the ground of appeal), and, if it did, whether a substantial miscarriage of justice, within s 30(4) of that Act, has occurred. This involves a consideration of the sole material issue at the trial, namely, duress.
Section 10.2 of the Criminal Code Act 1995 (Cth): Duress
"(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does 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 carrying out conduct of the kind actually carried out."
164 The respondent did not allege at the trial that subs (3) of s 10.2 was relevant to the proceedings.
165 Section 10.2(2) has a subjective and an objective element. The subjective element requires that the accused believe, at the material time, that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct constituting the offence with which the accused has been charged is a reasonable response to the threat.
The objective element is that, at the material time, the accused's belief in relation to those matters was reasonably held.
166 The accused's belief in relation to each of the matters specified in pars (a), (b) and (c) of s 10.2(2) must be held in fact by the accused, and must also be reasonably held, when he or she carries out the conduct constituting the offence. This corresponds to the common law. See R v Hudson [1971] EWCA Crim 2; [1971] 2 QB 202 at 206 - 207; R v Williamson [1972] 2 NSWLR 281 at 299 - 300.
167 The accused has an evidential onus in relation to the defence of duress. It is necessary for the accused to point to or adduce evidence from which it could be inferred that there is at least a reasonable possibility that the accused carried out the conduct constituting the offence under duress. See Youssef (1990) 50 A Crim R 1 at 2 - 4; Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 80 A Crim R 553 at 556; Hunt (1996) 88 A Crim R 307 at 308; Jettner v Peach [2003] NTCA 16 at [8]. If the accused satisfies the evidential onus, the prosecution must prove beyond reasonable doubt that the conduct constituting the offence was not carried out by the accused under duress. The prosecution may discharge that burden by proving, to the requisite standard, that:
(a) the accused did not, at the material time, believe that:
(i) a threat had been made that would be carried out unless an offence was committed; or
(ii) there was no reasonable way that any such threat could be rendered ineffective; or
(iii) the conduct constituting the offence with which the accused has been charged was a reasonable response to any such threat; or
(b) if the accused did believe each of those matters, the accused's belief in relation to any of them was not, at the material time, reasonably held.
See R v Abusafiah (1991) 24 NSWLR 531 at 542 - 543; Lanciana (1996) 84 A Crim R 268 at 272; R v Smith [2005] QCA 1; [2005] 2 Qd R 69 per Davies JA (with whom Fryberg and Mullins JJ agreed) at 76 [32].
168 In Oblach v The Queen [2005] NSWCCA 440; (2005) 195 FLR 212, Sully J referred, at 224 [74], to two possible constructions of the requirement that the accused's belief in relation to the matters specified in pars (a), (b) and (c) of s 10.2(2) be reasonably held. His Honour said that this requirement may entail an inquiry by the jury into the question whether each requisite belief held in fact by the accused was reasonably held by him or her, in the sense that:
(a) each belief would have been held by any ordinary person in the then position of the accused; or
(b) each belief would have been held by any person in the then position of the accused and having all of the relevant personal characteristics of the accused.
Sully J held that the first of those alternative constructions was correct. Spigelman CJ and Hulme J appear to have agreed, in substance, with that approach.
169 I agree with McLure JA that, in the circumstances of the case under appeal, it is unnecessary for this Court to express an opinion as to the correctness of the decision in Oblach on that issue of construction. Further, it is undesirable for this Court to do so in that neither party made any submissions on the point.
170 In my opinion, the learned Judge should not have left the issue of duress to the jury, in that:
(a) even assuming (without deciding), most favourably to the appellant, that at the material time the appellant believed that:
(i) Hodge had made threats that would be carried out unless the offences with which the appellant was charged were committed; and
(ii) there was no reasonable way that the threats could be rendered ineffective; and
(iii) the appellant's conduct constituting the offences was a reasonable response to the threats; and
(b) even assuming (without deciding), most favourably to the appellant, that the appellant's personal characteristics (in particular, his chronological age and maturity) were relevant to the jury's consideration of whether the prosecution had proved, beyond reasonable doubt, that any belief held in fact by the appellant in relation to each of those matters was not reasonable,
a reasonable jury, properly directed, would be bound to conclude that the prosecution had satisfied them, beyond reasonable doubt, that:
(A) any belief by the appellant, that there was no reasonable way that Hodge's threats could be rendered ineffective, was not reasonable; and
(B) any belief by the appellant, that the conduct constituting the offences was a reasonable response to the threats, was not reasonable.
171 On the evidence and at the material time, the only reasonable belief open to the appellant, in relation to rendering Hodge's threats ineffective, was the belief that reporting the threats and Hodge's and the appellant's associated conduct to the authorities (for example, at Manchester airport prior to his departure or at Perth airport upon his arrival), and seeking police protection, was a reasonable way that the threats could be rendered ineffective. Further, on the evidence and at the material time, the only reasonable belief open to the appellant, in relation to whether the conduct constituting the offences was a reasonable response to Hodge's threats, was the belief that the conduct constituting the offences was not a reasonable response to the threats, in that they could reasonably be rendered ineffective by making a report to the authorities and seeking police protection.
172 On the assumptions I have mentioned and for the reasons I have given, the learned Judge should have answered, in the negative, the critical question, namely, whether, on the version of events most favourable to the appellant which is suggested by material in the evidence, a jury, acting reasonably, might fail to be satisfied beyond reasonable doubt that the appellant was not acting under duress, within s 10.2(1) and (2) of the Code. See Buttigieg (1993) 69 A Crim R 21 at 27; Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 at 67 - 68; R v Rae [2006] QCA 207 at [33] - [36], [38] - [39].
173 I am therefore of the opinion that the learned Judge's misdirection did not occasion a miscarriage of justice, within s 30(3)(c) of the Criminal Appeals Act.
174 In any event, however, even if (contrary to the opinion I have expressed) the learned Judge's misdirection did occasion a miscarriage of justice, I consider that no substantial miscarriage of justice, within s 30(4) of the Criminal Appeals Act, has occurred. I am satisfied, beyond reasonable doubt, having:
(a) reviewed the whole of the record of the trial;
(b) taken into account the "natural limitations" that exist where an appellate court does not have the advantage of seeing and hearing the witnesses;
(c) disregarded her Honour's misdirection; and
(d) made the assumptions (most favourable to the appellant) referred to in par 170 above,
that the appellant was guilty of the offences with which he was charged. In particular, I am satisfied, beyond reasonable doubt (and for the reasons I have given in relation to my conclusion that her Honour should not have left the issue of duress to the jury), that:
(a) any belief held in fact by the appellant, at the material time, that there was no reasonable way that Hodge's threats could be rendered ineffective, was not reasonably held; and
(b) any such belief by the appellant, at the material time, that the conduct constituting the offences was a reasonable response to the threats, was not reasonably held.
Those matters relate to the objective element of the defence of duress, and do not depend on an assessment of the appellant's credibility or an acceptance or rejection of any material aspect of his evidence. There is no reasonable possibility that the appellant carried out the conduct constituting the offences under duress, within s 10.2(1) and (2) of the Code. As I have mentioned, duress was the sole material issue at the trial. In the circumstances, there is no reason why this Court should not exercise its power under s 30(4) of the Criminal Appeals Act. See Darkan v The Queen [2006] HCA 34 at [84], [94] - [96] including the observations of Gleeson CJ, Gummow, Heydon and Crennan JJ in relation to Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444 at 454 - 456 [41], [43], [45] - [46], [50] - [51].
Morris
The Queen [2006] WASCA 142
(2005) 30 WAR 65
(1995) 183 CLR 58
(2005) 195 FLR 212
(1991) 24 NSWLR 531
(1986) 43 SASR 33
(1994) 68 ALJR 917
(1991) 180 CLR 531
(1993) 67 ALJR 510
(1990) 171 CLR 312
(1978) 141 CLR 88
(2005) 80 ALJR 444
(1988) 164 CLR 365
(1993) 60 SASR 415
(1955) 93 CLR 493
(2001) 80 SASR 537
(1977) 137 CLR 517
(1978) 140 CLR 364
(1987) 163 CLR 454
(1994) 181 CLR 487
(2001) 208 CLR 593
(2003) 214 CLR 118