Taiapa v The Queen

Taiapa v The Queen - [2009] HCA 53 - HCA 2009 case summary — Zoe

[13]

What follows is a summary of the facts giving rise to the prosecution and of the applicant's account of the circumstances leading to his involvement in the enterprise.
The applicant was arrested on 22 July 2006. The police intercepted the vehicle in which he, his co-accused, Robert Ackers, and a young woman were travelling. They located 364.213 grams of methylamphetamine in the course of searching the vehicle. The estimated value of the drug, which varied according to how it was to be sold, was between $459,000 and $1.15 million. The sum of $3,200 in cash was found on the applicant and a further sum of $25,220 in cash was found in the boot of the vehicle.
The applicant had a history of marijuana and cocaine use. In the period 1999 to 2002 he had dealt in drugs to support his use of them. His suppliers were two men named Tony and Salvatore. By 2002 he had accumulated a debt to Tony and Salvatore of $60,000. At around this time the applicant was convicted of trafficking in drugs and sentenced to a term of six years' imprisonment. He had not repaid the debt to Tony and Salvatore at the time he was taken into custody. He was released on parole in December 2005. Following his release the applicant and his de facto wife, Kristy Jarvis, moved to Cairns and took up residence in premises in Kidston Street. It was a condition of his parole order that he reside in the Cairns area.
On the evening of 29 May 2006 the applicant and Ms Jarvis were at home in the Kidston Street premises. At around 8.00pm the applicant answered a knock on the front door. As he opened the door he was seized around the neck and forced backwards into the lounge room by Tony, who was holding a gun to his face. Salvatore was also present. The two men demanded the repayment of their money. They instructed the applicant not to go to the police and threatened that, if he did, he or Kristy would be shot. The two men left, telling the applicant that he had four weeks in which to repay the money and that they would return in a fortnight.
Kristy was pregnant with the applicant's child at the time of this confrontation. The applicant and she agreed that she should leave Cairns and return to her home on the Gold Coast. The applicant was not able to accompany her under the terms of his parole order. Kristy left Cairns and returned to the Gold Coast on 2 June. The applicant moved out of the Kidston Street premises and into premises in Alfio Street, Cairns. Thereafter he made unsuccessful attempts to raise the money that he owed to Tony and Salvatore. Ultimately the applicant sought his mother's assistance and she agreed to lend him $29,000 in cash, which she had on hand.
On Saturday 15 July Tony and Salvatore confronted the applicant at the Alfio Street premises. They threatened him, again, at gunpoint and taunted him over his unsuccessful attempt to evade them. They rejected his offer to repay them $29,000 immediately and the balance by instalments. They told the applicant that in addition to giving them $29,000 he was to travel to Sydney and collect something for them. They said that they would give him further instructions in this regard the following night. They told the applicant not to try anything stupid or that he, Kristy and his mother would pay for it. They repeated their earlier instruction that the applicant was not to report the matter to the police.
The following evening Tony and Salvatore returned to the Alfio Street premises. On this occasion they instructed the applicant that he was to meet a man in Ettalong, which is a township to the north of Sydney, at 11.00pm on Thursday 20 July and to collect two parcels from him. The applicant understood that the parcels would contain prohibited drugs. He was instructed to remove two sections of foam upholstery from under the rear seat of his vehicle and to secrete the parcels in the cavities. They told him that they would return to the Alfio Street premises to collect the parcels and the money on the evening of Sunday 23 July.
The applicant did not have a driver's licence at the time of these events. He asked Robert Ackers to drive him to Ettalong. The two of them and a female friend embarked on the trip. The applicant collected the parcels from the man at the nominated time and place. He collected the money from his mother's premises the following day. He was apprehended in the course of the return journey.
The applicant was asked about his reasons for failing to report the threats to the police or to his parole officer. In the course of the cross-examination the following exchange took place between the trial judge and the applicant:

[30]

In the written submissions filed on the applicant's behalf the application was said to raise the question of "[w]hether and to what extent s 31(1)(d)(ii) of the [Criminal Code] contains objective limitations on the availability of the defence of … compulsion". On the hearing, counsel for the applicant accepted that par (d)(ii) imports an objective element into the defence. The analysis of the operation of the provision in Smith, which was applied by the Court of Appeal, was not challenged. The applicant and the Crown each submitted that the reasonableness of the grounds for the belief is to be assessed by reference to the circumstances as the accused perceives them. This application does not provide the occasion to consider the correctness of the latter submission, nor the extent to which, if at all, the requirement of reasonable belief for the defence of compulsion under the Queensland Criminal Code differs from the requirement of reasonable belief for the defence of duress under the Commonwealth Criminal Code[15].
The sole issue raised by the application is whether the Court of Appeal erred in its conclusion that the evidence did not disclose a case fit for consideration by the jury that there were reasonable grounds for the applicant's belief. The applicant points to the evidence that his life and the lives of members of his family were under threat from high-level, armed, drug dealers who had directed him not to report the matter to the police. He did not have information about the identity of Tony and Salvatore sufficient to enable the police to locate them. He was not confident that the police could offer effective protection to him and to his family. In his submission, the matters addressed by the Court of Appeal as demonstrating the absence of reasonable grounds were factual considerations for the jury to weigh.
The Crown submits that the Court of Appeal's invocation of public policy, including its reference to the authorities dealing with the common law defence of duress[16], is to be understood in the context of the legislative history. Amendments introduced into s 31(1) in 1997[17] and 2000[18] widened the defence conformably with developments in the common law defence. These changes, which operated to lessen the strictness of the defence, are said to have been balanced by the requirement created by par (d)(ii) for the existence of reasonable grounds for the belief. The Crown called in aid the provisions of the Police Service Administration Act 1990 (Q) in support of the Court of Appeal's reference to the attributes of a civilised society. Section 2.3 of that Act sets out the functions of the Queensland Police Service, which include the protection of members of the community from the actions of criminal offenders, and the detection of offenders and bringing of offenders to justice. Given that the execution of Tony and Salvatore's threats was not imminent and that the applicant had the opportunity to report the matter to the police, in the absence of evidence raising as a reasonable possibility that the police would not act in accordance with their statutory duty, the Crown submits that the Court of Appeal was correct to hold that no arguable case of compulsion was raised.

[53]

The belief that s 31(1)(d)(ii) posits is that the accused or the other person who is subject to the threat is unable otherwise to escape the carrying out of the threat. "Otherwise" in this context means other than by engaging in the unlawful conduct. It was necessary for the applicant to identify some basis in the evidence raising as a reasonable possibility the existence of reasonable grounds for his belief, that he had no alternative other than to collect and transport a quantity of prohibited drugs in order to avoid the carrying out of the threats made by Tony and Salvatore. This necessarily requires consideration of the basis for the applicant's belief that reporting the matter to the police would not have prevented the carrying out of the threats.
The circumstance that the demands and threats made by Tony and Salvatore were made with a gun and were accompanied by instructions not to report the matter to the police does not support the reasonableness of the applicant's belief that he had no option other than to comply with the demands in order to escape the carrying out of the threats. The applicant had, as he acknowledged, ample opportunity to seek the assistance of the police. He offered three reasons for his failure to do so. The first was that he did not have sufficient information to enable the police to identify Tony and Salvatore. The second was that he did not believe that police protection was "100 per cent safe". The third was that Tony and Salvatore were "not your every day drug dealers" and were unlikely to fall into a booby trap. The Court of Appeal said that the police could have placed surveillance on the applicant's premises and that a controlled delivery of the drugs to Tony and Salvatore might have led to their arrest. It is true that there was no evidence about the investigative methods or the resources available to the police. However, this does not undermine the Court of Appeal's conclusion. There is no reason to doubt it. The applicant's belief that he did not have sufficient information to enable the police to identify Tony and Salvatore does not take into account that the police may have known more about these men than he thought that they did or that the police may have been able to find out more about them than he thought they could. In any event, it does not explain his failure to report the matter to the police in order to seek their protection. The applicant's belief that police protection may not be 100 per cent safe provided no basis for a reasoned conclusion that it was not. It may explain the applicant's preference for complying with the unlawful demands. However, an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat.
The Court of Appeal was correct to hold that no jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that there were not reasonable grounds for the applicant's belief within s 31(1)(d)(ii).

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