Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Duress - Section 31(3) Criminal Code - Whether error in summing up - 'reasonably necessary'

3 The appellant appeals against her conviction of two drug related charges: one count of attempting to possess a prohibited drug, namely cannabis, with intent to sell or supply; and one count of possession of cannabis with intent to sell or supply.

6 On that date, police intercepted a toolbox containing 10 bags of hydroponically grown cannabis that had evidently been sent from South Australia by a person named Michael Barrett. The toolbox was intercepted at a transport depot in Maddington.

8 The police removed the bags from the toolbox and replaced them with other material. Later that day the appellant attended at the depot, collected the toolbox and took it home. The police executed a search warrant at her house and found the toolbox in her bedroom.

9 Count 2 related to cannabis which was found by the police while searching the appellant's house. They found 11 bags of cannabis, each weighing about 1 oz (28 g), in a hole in the walk-in wardrobe adjoining the appellant's bedroom.

10 The police found cannabis in other parts of the house, as well as electronic scales, clip-seal bags and cash totalling $9,430.

11 The defence opening at trial identified a number of matters not in dispute, as well as identifying the main issues for the jury. It was not in dispute that the appellant had attended at the depot to pick up the toolbox and that the toolbox had originally contained cannabis before the police substituted another substance for it. Nor was it in dispute that the police located cannabis, including the 11 bags, when searching the house and that that cannabis was in the possession of the appellant.

12 Counsel for the appellant said that the appellant's case was that she had committed the offences under duress from the threats of her de facto partner, Jason Caporn. The only other issue identified by counsel in opening was as to whether the accused knew the contents of the toolbox when she went to pick it up.

13 The trial judge directed the jury in relation to the two issues identified by defence counsel.

14 No complaint is made respecting the judge's direction on the question of whether the appellant knew that there was cannabis in the toolbox which she collected on 12 April 2005. By its verdict on count 1, the jury plainly rejected the appellant's evidence that she did not know there was cannabis in the toolbox. There is no suggestion, nor could there be, that this was not open to the jury.

15 The single ground of appeal complains of the trial judge's direction on the question of whether the appellant committed the offences in circumstances in which she was relieved from criminal responsibility for them by the operation of s 31(3) of the Criminal Code (WA).

16 The ground of appeal complains that 'the trial judge failed adequately to direct the jury concerning s 31(3)'.

17 Section 31(3) of the Criminal Code provides as follows:

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

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

18 The trial judge directed the jury that they could convict the accused only if the State satisfied them beyond reasonable doubt either that the accused was not threatened with actual unlawful violence, or that the act she did was not reasonably necessary in order to resist the threat of actual and unlawful violence (ts 260, 262, 264). No complaint is made about that direction, which is plainly correct and an appropriate direction to a jury when s 31(3) is thought to arise.

19 The appellant complains of the direction as to the term 'reasonably necessary'.

20 In that regard, the trial judge directed the jury as follows (ts 262):

What is reasonably necessary is a matter for you. The word 'reasonable' in this context means what a reasonable person would regard as reasonable, what an ordinary person would regard as reasonable.

I can't give you a definition of reasonable that's more specific than that. You are the jurors in this case, you are the judges of the facts, you bring to bear upon your judgment of the facts your own everyday experiences of life and the values that you hold which reflect community values. It's for you to say whether something was reasonably necessary or not in the context of this case ... It's a matter for you.

21 The particulars of the ground of appeal complain that the jury were required to consider whether the appellant reasonably believed that she had to act unlawfully to avoid violence, and the trial judge failed to tell the jury of that requirement.

22 The written and oral submissions for the appellant did not contend that the jury were required to consider whether the appellant reasonably believed that she had to act unlawfully to avoid violence. In any event, as will appear from my reasons, I do not accept that that was a matter which the jury were required to consider. The question under s 31(3) is one of reasonable necessity, not a question of what an accused believed and whether the accused's belief was reasonable. As will be developed, the two questions are of a different character and, for present purposes, the difference matters.

23 The appellant's written submissions complain that the trial judge's direction failed in two respects: to direct the jury that what is reasonably necessary is to be gauged against a person of ordinary firmness of mind and will; and to direct that it is to be gauged against a person of the same race, gender and maturity as the appellant. In oral submissions the appellant complained only of the first of those matters.

24 For the reasons which follow, the trial judge was not obliged to direct in either of those terms.

25 There appear to be very few cases concerning s 31(3). In Dudley v Ballantyne [1998] WASCA 198; (1998) 28 MVR 209, 214 Owen J observed that 'the words "reasonably necessary" in s 31(3) indicate a degree of objectivity in assessing this defence'.

26 Denton v Bodycoat [2000] WASCA 424 concerned an offence of carrying pepper spray. In that context, Roberts-Smith J held [68] that s 31(3) connotes a sense of immediacy or a reasonable apprehension of imminent attack or danger, so that there is a temporal nexus between the threat giving rise to the excuse and the conduct the subject of the offence.

27 Consistently with that, in Quartermaine v Marsh [2006] WASC 303 [16], a case concerning being armed with an offensive weapon, Miller J stated that, in that case, 'it was critical that there be evidence to raise this defence in the form of a reasonable apprehension of imminent attack or danger'.

28 In support of her submission that reference should have been made by the trial judge to a person of ordinary firmness of mind and will (and, or alternatively, in the written submissions, to a person of the same age, race and gender as the appellant) the appellant referred to a number of cases concerned with duress. However, none of the cases concerned s 31(3) of the Criminal Code.

29 The appellant's written submissions referred to R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75 and Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325.

30 Both these decisions concerned s 10.2(2) of the Criminal Code Act 1995 (Cth) (the Commonwealth Act). Ultimately, in oral submissions, the appellant did not rely upon those cases, accepting that the Commonwealth provision was materially different from s 31(3). Nonetheless, it is, I think, useful to set out the Commonwealth provisions because the (conceded) difference is one which, in my view, is of significance.

31 Section 10.2(2) of the Commonwealth Act provides as follows:

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.

32 In Oblach the New South Wales Court of Appeal construed s 10.2(2) as requiring an accused's belief to be reasonable, having regard to the circumstances in which he found himself, but without regard to any of the personal characteristics of the particular accused. In Morris the court did not need to and did not determine the correctness of the decision in Oblach on that issue of construction.

33 The language of s 10.2(2) of the Commonwealth Act is markedly different from s 31(3) of the Criminal Code (WA). The Commonwealth provision, on its face, has a subjective and an objective element. The subjective element is that the accused has the beliefs in each of pars (a), (b) and (c). The objective element is that, at the material time, that belief was reasonably held (Morris [165]).

34 By contrast, s 31(3) does not make any explicit reference to the belief of the accused person. What is required, in order that the section operates to exculpate from criminal responsibility, is an objectively determined relationship between the (actual and unlawful) violence threatened to the accused and the relevant act (or omission) of the accused said to constitute this offence. The act must be 'reasonably necessary' to resist the threatened violence.

35 In this respect, the contrast may be illustrated by reference to the two paragraphs of s 248 of the Criminal Code (WA), dealing with self-defence.

36 The first paragraph of s 248 makes it lawful for a person who has been unlawfully assaulted and has not provoked the assault to use such force to the assailant as is reasonably necessary to make effectual defence against the assault (with a presently immaterial proviso).

37 The second paragraph is framed in a different way, referring to a person who 'believes on reasonable grounds' relevant matters.

38 The contrast in the (Queensland equivalent of the) two paragraphs of s 248 was explained by McPherson JA (with whom Davies JA and Fryberg J agreed) in R v Gray [1998] QCA 41; (1998) 98 A Crim R 589 and accepted in Minniti [2001] WASCA 148; (2001) 120 A Crim R 531 [58]. In the case of the first paragraph, the degree of force used must be 'reasonably necessary to make effectual defence'. That is a criterion which is objective and not concerned with the offender's actual state of mind. By contrast, the second paragraph is, in part, subjective. The accused person must believe that what he is doing is the only way he can save himself from the assault.

39 Issues analogous to the issues sought to be raised by the appellant in this case have been considered in relation to provocation and in relation to mistake under s 24 of the Criminal Code (WA). As to s 24, see Aubertin v Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [24] - [46]. However, by their nature, and by the terms of the relevant provisions of the Criminal Code, those exculpatory factors direct attention to subjective questions as to the accused's belief or response, conditioned by a requirement of reasonableness. Section 31(3) contains only the objective requirement of reasonable necessity.

40 Where an issue of the reasonableness of an accused's belief or response arises, in assessing that reasonableness there is a question as to which, if any, of the accused's characteristics are to be brought to bear. No such question needs to arise when the only issue is the objective question of reasonable necessity.

41 The appellant also relied upon the decision of the Queensland Court of Appeal in R v Smith [2005] QCA 1; [2005] 2 Qd R 69. That decision involved s 31(1)(c) (the Queensland equivalent of s 31(3) of the WA Code) as well as s 31(1)(d) (analogous to s 31(4)). The directions as to s 31(1)(c) closely resembled those given in this matter. No complaint was made on appeal in Smith as to the trial judge's directions respecting s 31(1)(c) (see [28] - [30]). The complaint concerned the direction respecting s 31(1)(d). The decision is not of any assistance for present purposes.

42 For corresponding reasons, 'P' (A Child) v The Queen (Unreported, WASCA, Library No 950469, 7 September 1995), which concerned s 31(4), is not of assistance in respect of s 31(3). Section 31(4) directs attention to the belief of the accused.

43 In R v Abusafiah (1991) 24 NSWLR 531 Hunt J (with whom Gleeson CJ and Mahoney JA agreed) discussed appropriate directions to be given to a jury in a case raising duress at common law. It was said that the question of reasonableness was to be determined by reference to a person of ordinary firmness of mind and will and of the same age, gender and maturity as the accused in the circumstances in which the accused found himself (544 - 546). R v Hurley [1967] VicRp 57; [1967] VR 526 was also a common law duress case. As to the common law, see also De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [218] - [242]; and Lanciana (1996) 84 A Crim R 268.

44 The provisions of the Criminal Code should be interpreted according to their terms without resort to any presumption that the provisions reflect the common law. Resort to the common law is appropriate only where the language of the Code is ambiguous or has a technical or special meaning acquired at common law or there is a lacuna which it is necessary for the common law to fill: Roberts v Western Australia [2007] WASCA 48; (2007) 34 WAR 1 [88], [93] - [95]; R v Barlow (1997) 188 CLR 1.

45 In my opinion, there is no occasion for resort to the common law in construing the words 'reasonably necessary' in s 31(3).

46 The question raised by this appeal is whether a trial judge is obliged, in directing a jury concerning s 31(3), to make reference to either or both of a person of ordinary firmness of mind and will, or a reasonable person of the same race, gender and maturity as the accused.

47 I do not consider that a trial judge is obliged to make reference to either of those matters in directing a jury as to s 31. The objective matter of reasonable necessity does not require a jury to be told to test reasonable necessity by reference to a reasonable person of any particular characteristics. A trial judge is not required, in my opinion, to make reference to any other persons. Indeed, to do so would, to my mind, add unnecessary complexity to the question for the jury: in the circumstances, was the act of the accused reasonably necessary to resist the violence threatened?

48 Consideration by a jury of a 'defence' under s 31(3) would seem to involve the following steps:

1. The jury must first identify what is said to be the possible threat of violence to the accused and consider whether, on the evidence, there was or may have been actual and unlawful violence threatened to the accused;
2. If the jury is satisfied beyond reasonable doubt that there was no such violence threatened to the accused, then the prosecution has excluded s 31(3) and it need not be considered further;
3. If, on the other hand, they are not so satisfied then the jury should:

(b) focus on the act (or omission) of the accused said by the prosecution to constitute the offence; and

(c) consider whether the accused's act (or omission) was reasonably necessary to resist the threat of violence to the accused;

1. The question of whether the accused's act was reasonably necessary is to be determined in all the circumstances in which the accused found himself or herself.

49 The trial judge's direction in this case explained those matters to the jury in clear and simple terms.

50 Finally, although not within the ground of appeal, the appellant also complains in submissions that the trial judge failed to direct the jury that threats of actual violence to the appellant's children would also found the defence, when the evidence required him to do so.

51 The short answer to that submission is that the evidence did not require any such direction. There was no evidence from the appellant, or anyone else, that violence was threatened by Mr Caporn to the appellant's children, in the accused's presence.

53 If, contrary to my opinion, I had found that the trial judge erred as alleged in the ground of appeal I would, in any event, have dismissed the appeal on the ground that no substantial miscarriage of justice has occurred: Criminal Appeals Act 2004 (WA) s 30(4). I set out below my reasons for that conclusion.

Alternatively, there was no substantial miscarriage of justice

54 In my opinion, for the reasons set out below, after taking into account the limitations arising from appellate review of the written record of the trial, the evidence at trial proved beyond reasonable doubt the accused's guilt of the two offences of which she was convicted. Given the nature of the complaint the subject of the ground of appeal, that conclusion would lead to the application of the proviso in this case. There is no question of a significant denial of procedural fairness or a serious breach of the pre-suppositions of a criminal trial as might deny the application of the proviso: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45], [46]; Gately v The Queen [2007] HCA 55 [109].

55 There is room for doubt as to whether there was a sufficient evidentiary foundation to require s 31(3) to be left to the jury.

56 The appellant did not give any evidence of any express threat by Jason Caporn to her if she did not go to the depot and collect the toolbox.

57 She was asked about attending at the transport depot on 12 April 2005. When asked 'What for?' she stated that 'We got ... a phone call to attend and pick up the delivery tool-box' (ts 175). She did not say that it was Mr Caporn, as distinct from her, who received the phone call. Nor did she say that Mr Caporn had asked her or told her to go to the depot. The appellant did not give any evidence directed specifically to any threat as at 12 April 2005, including in cross-examination at ts 211, when the question asked of her might have been expected to have provoked a response referring to any perception, on her part, of a threat of violence to her if she did not go to the depot.

58 Nor did the appellant give any evidence as to the reason for her possession of the cannabis in the house, the subject of count 2. She did not say anything to the effect that she maintained her joint possession, with Jason Caporn, of the cannabis in her house in order to resist violence threatened to her by Mr Caporn.

59 At its highest, the appellant's case on s 31(3) was as follows. She gave evidence, supported by evidence from other witnesses called by her, that she had had a violent and abusive relationship with Mr Caporn (ts 165 - 169). In respect of an earlier trip to the depot (of which more will be said shortly) she was asked why she did not say to Mr Caporn 'do it yourself'. She responded that if she had done so he would have been violent, that 'he was just a man that you just couldn't say no to. The repercussions were too great'. She said that she did not want any violence in front of her children. She also said that if he asked her to do something and she did not do it he would get very violent (ts 173 - 174).

60 Thus the appellant's case on s 31(3) was based on an implied threat by Mr Caporn of violence to her if she did not collect the toolbox (and, as to count 2, if she did not possess or continue to possess the cannabis at the house).

61 Assuming, favourably to the appellant, that the evidence raised a question under s 31(3) which ought to have been left to the jury, the whole of the evidence proved the guilt of the accused beyond reasonable doubt.

62 The collection by the appellant of the toolbox on 12 April 2005 was not an isolated event. Rather, this was the fourth transaction between the appellant and the person in South Australia called Barrett that had involved the sending of a toolbox between Barrett in South Australia and the appellant, via the transport depot at Maddington.

63 Mr Gordon, who worked at the depot, said in his evidence that on about 20 March 2005 he had a telephone call from a female who asked how much it would cost to send something to South Australia. The only conclusion open on the evidence was that the accused made the initial telephone call to the depot.

64 Two days later the appellant attended and sent a toolbox to M Barrett in South Australia. The consignment note (exhibit 1) was filled out in the name M Quartermaine.

65 On about 8 or 9 April 2005 a toolbox was received from South Australia and collected by the appellant, and another toolbox sent to South Australia with a consignment note in the name 'M. Michelle'. (See exhibit 2 and exhibit 3.)

66 In her evidence, the appellant said that she had driven Mr Caporn to the depot on each of the four occasions in question. In substance she admitted that she was the woman who Mr Gordon had seen on these four occasions (ts 181 - 182).

67 Thus the appellant had engaged in a series of transactions with Mr Barrett over several weeks leading up to 12 April 2005. In those circumstances, the appellant's conduct in collecting the toolbox on 12 April 2005 was not reasonably necessary in order to resist actual violence threatened to her.

68 Similarly, her conduct in continuing jointly to possess cannabis in her house was not reasonably necessary in order to resist actual violence threatened to her.

69 Moreover, inside the last toolbox which the appellant admittedly sent to South Australia was a brown paper bag (exhibit 7) containing $20,410. Handwritten on the paper bag was 'Mick, that was very nice. It wasn't them I couldn't process, it was the other contract. Thanks, Michelle'. Identical brown paper bags (exhibit 24) were seized from the appellant's home.

70 The appellant did not squarely deny writing the note. She said that she could not recall doing so (ts 203 - 204).

71 However, there can be no basis to suggest that anyone other than Mr Caporn or the appellant had access to the toolbox before it was sent to South Australia. It is fanciful to suggest that Mr Caporn wrote a note signed in the name 'Michelle'. The only reasonable conclusion is that the appellant wrote the note. On that basis, she was a willing and active participant in the trading with Michael Barrett in South Australia.

72 For each of those two reasons, I would, if the ground of appeal had succeeded, have dismissed the appeal on the ground that no substantial miscarriage of justice has occurred.