R v Acton[2001] QCA 155

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: At about 1.10 am on 5 June 1999 a police vehicle was travelling along Ross River Road, Condon, when one of the occupants, Const Schifilliti heard sounds coming from the Riverside Autos car yard on the left.  He spoke to the driver, Sgt Burrow, who stopped the car, reversed, and shouted out "What are you doing?" Constable Schifilliti alighted from the vehicle and ran to the car yard. As he did so, he saw a male person "exiting" the driver's side of a white Landcruiser vehicle in the yard.  Constable Schifilliti gave chase. His quarry fled to the rear of the car yard, where the constable heard the fence rattling as if someone were climbing it. A police dog handler and his dog were summoned and located the appellant concealed in vegetation in the premises at the rear of the car yard. He was arrested and taken to the police station.

2. The outcome of these events was that the appellant was charged with four offences: (1) stealing a set of vehicle keys the property of Mike Carney Motors Pty Ltd; or, alternatively, (2) receiving that set of keys having reason to believe they had been stolen; (3) breaking and entering the premises of S & S Thomson Investments Pty Ltd and Realty Pty Ltd with intent to commit an indictable offence; and (4) attempting to unlawfully use a motor vehicle without the consent of one J R Hall, who was the person in possession of it. These offences were alleged to have been committed, in the case of counts 1 and 2, on or about 4 June 1999; and, in the case of counts 3 and 4, on 5 June 1999. At a trial which commenced on 30 October 2000, the appellant was found not guilty of the offences in count 1 and 3, but guilty of the offence in count 4. The jury were unable to agree on count 2, and at the end of the trial the Crown entered nolle prosequi in respect of that charge. The appellant now appeals against his conviction in respect of count 4.

3. Although represented at the trial by Mr Honchin of counsel, the appellant appeared in person on the hearing of the appeal. Of his four complaints, ground 1 was that the verdict on count 4 was unsafe; ground 2 was that the learned judge had erred in not admitting at the trial the evidence of witnesses sought to be called to testify about the history of threats made against him; ground 3 was that the judge had erred in directing the jury about the need for immediacy of the threat; and ground 4 was that he had erred in not permitting an excuse of honest and reasonable mistake about a state of things to be put to the jury under s 24 of the Code.

4. To understand these grounds of appeal, it is necessary to look more closely at the evidence adduced at trial. The case is an unusual one. The appellant freely admitted the offences charged and, indeed, gave evidence at the trial of his having committed them. On appeal, he was disposed to dispute that there was evidence that he had been seen emerging or "exiting" from the Landcruiser vehicle at the car yard; but Const Schifilliti testified to that effect, and the jury were entitled to believe his evidence. In essence, ground 1 of the notice of appeal focused on a complaint that the verdict on counts 1 to 4 were mutually inconsistent. The judgements of their Honours in Mackenzie v The Queen (1996) 190 CLR 348 confirm that an appellate court should be reluctant to upset convictions on that ground unless there is no rational basis for distinguishing between the verdicts in question. See R v P [2000] 2 Qd R 401, 402-404.

5. Here, in my opinion, there is such a basis. The case is, as I have said, an unusual one. On his own admission repeated before us on appeal, the appellant is or used to be a professional car thief. He has a prodigious record of criminal convictions stretching from 1981 to 1994. Later he graduated to safe-breaking, for which he was convicted and sentenced in 1994 to a term of imprisonment for 11 years, with a recommendation for parole after five years. He was on parole when the offence in count 4 was committed, with the consequence that under s 187(1) of the Corrective Services Act 1988 his parole has been cancelled, and under s 190 he is liable to serve out the balance of that sentence. Hence his interest in upsetting the conviction on count 4.

6. A rational basis for the jury's verdicts is, to my mind, plain enough. It is that they did not believe a word the appellant said in his evidence, even when it constituted a sworn admission or confession, as in the case of counts 1 and 3. That is not altogether surprising when regard is had to the appellant's record of convictions, which was tendered in evidence at the trial. In effect, he put his bad character in issue, and the jury accepted it. They evidently considered that nothing he said was worthy of credence even when it consisted of a statement against interest. The verdict of guilty on count 4 can readily be explained by the fact that it rested not on the testimony of the appellant but of Const Schifilliti's evidence that he had seen the appellant "exiting" the Landcruiser. The "hung" verdict on the alternative count 2 is more difficult to explain. The independent evidence on this count consisted of the finding on his person when he was arrested of a set of keys for a Landcruiser vehicle. It was a different vehicle from the one in the car yard at Riverside Autos from which the appellant was seen emerging by Const Schifilliti. Those keys belonged to a Landcruiser in another car yard elsewhere in Townsville that was the property of Mike Carney Motors Pty Ltd. No doubt that might be thought to be cogent evidence that the keys were stolen; but there was evidently one or more of the jurors who were not prepared to believe the appellant even when he confessed to that offence. That juror or jurors may have been concerned that it implied an acceptance to some extent of the appellant's explanation at the trial of why he was engaged in the offence charged in counts 1, 2 and 3, which was that he had committed the offences under duress.

7. The appellant is a motor mechanic by trade. On 4 June 1999 he was working on a vehicle at a house at Ross River Road, Townsville, when he received a call from his wife. Although estranged, he continued to see her and his sons, who all lived in Charters Towers, where he also lived but in different premises. She asked him to bring her some money of which she was greatly in need. He went to their home at Charters Towers and remained there with his children until about 10.30 pm. Then he drove to the shed where he lived intending to spend the night there.

8. When he arrived at his shed, he saw a Toyota with two men in it. They were Adam Revet and Shaun Daley. During his period in prison the appellant had, he said, made the acquaintance of various unsavoury characters including those two men and another named Colin Mayne. They said he owed them money and had to pay them. He admitted he owed them money but said he had paid it. Revet said it had gone to the wrong person, so that the appellant had to pay it again, and if, as he claimed, he had no money, he would have to do a job for them. When he demurred, they said he had no choice. At about this juncture, Colin Mayne appeared. He had a gun down the front of his pants. The appellant could see it or the handle of it. Mayne advised the appellant that he would use the gun if he did not do what he was told.

9. Confronted with this prospect, the appellant said, he accompanied the three men. They drove to Townsville. On the way, the others were injecting themselves with heroin. They had a set of keys, which Revet gave him, which fitted a vehicle at Mike Carney's car yard. On the appellant's recommendation, they first drove on to the Riverside Autos car yard in Ross River Road. The Landcruiser vehicle there that they wanted him to steal was pointed out to him. He and Mayne walked across the road to the yard, which had a high fence around it. While Mayne waited outside the fence, the appellant went into the yard with a bag of tools. Inside, he picked up a brick and smashed a window in the office building (count 3). He did so, he said, to make as much noise as he could to attract attention. Then he set to work on the Landcruiser. It was while he was working on it (count 4) that the police car stopped and someone yelled out at him. He fled and went over the fence into an adjoining nursery, where he hid in the vegetation until the police dog located him and he was arrested. Back at the police station, he declined to be interviewed; but he did tell one of the police officers that he had been "forced to do this". Constable Frilongos confirmed that the appellant had "mumbled something about being forced to do it". He passed this information on to the investigating detectives.

10. It is to my mind plain that, contrary to the appellant's submission on appeal, the jury rejected the whole of his evidence and considered that it did not suffice to raise a reasonable doubt in their minds about his guilt on count 4. If that were all there was to the appeal, it would be dismissed. However, ground 2 complains that there was other evidence of duress which the learned judge refused to admit at the trial. Because it was not admitted in evidence, it is difficult to know exactly what it was. However, from counsel's opening of the defence case and from some of the evidence given by the appellant, it is possible to say this. After the appellant was released on parole, he opened a car workshop in Cairns and was doing "quite well" until about January 1998. It was about then that he testified against some prison officers at a trial or an inquiry. His evidence was reported on the front pages of the newspaper, as a result of which everyone knew about it, and "that's when the threats started". In consequence, he was forced to shut down his workshop and move back to Charters Towers. He said the threats came mainly from a Terry Irving, an armed robber, with whom the appellant had served time. He was about to say more on the subject, when prosecuting counsel objected on the ground that it was hearsay. Having regard to the fact that the appellant was aiming to prove a state of mind resulting from a threat, the objection was not sustainable in law; but the learned trial judge invited defence counsel to go "direct to the events"; otherwise, his Honour said, what the court was hearing might ultimately prove to be irrelevant. Evidence was then given by the appellant of the events leading to his journey to the Riverside Autos car yard.

11. Later in his evidence the appellant said he had thought he was going to be killed; that there was a price on his head, and that "they" had previously tried to kill him. His Honour said that the court was

"not concerned with the life history of this man, because he might have been threatened a thousand times. What we're concerned with are events that have some connection with the events of 4 June 1999 … I don't think it helps us to know he may have been threatened in 1998".

Somewhat later at the trial, counsel for the Crown took the matter up, saying that there did not seem to be any connection between the threats alleged to have been made by Mayne and others on the night of 4 June 1999 and the events in 1998. Mr Honchin of counsel for the defence said that the threats had been continuous over a period of time  "essentially following the appellant's action in giving evidence at the drugs trial early in 1998". He was proposing to call the appellant's wife Ms Davis to testify to an incident in early 1999 when she was visited by a person calling himself Colin Mayne, who wanted to know where the appellant was. She was then told to speak on the telephone to a man whose voice she recognised as that of Adam Revet. She later reported the matter to Det Barry Maff, who would also, it was said, be called to give evidence of his knowledge of threats to the appellant and of a rumoured price on his head.  In addition, the defence would call a Mr Chris Scholes, who in 1998 and 1999 was an intelligence officer at Townsville prison.  He would give evidence of hearing a taped conversation between an inmate and a person outside the prison, and of his observations of the appellant's reactions to "these threats". When asked to place these events in time, Mr Honchin said it was in 1998 at a time when the appellant was on parole.

12. After some further submissions, his Honour made a ruling on the admissibility of this evidence as going to excuse or exculpate the appellant from criminal responsibility pursuant to s 31 of the Criminal Code. His Honour referred to the decision in R v Pickard [1959] Qd R 475 and to s 31(4) of the Code as it was at the time of that decision. Since then, it has undergone amendments on two occasions, of which the most recent was in 2000. At the time of the events with which the trial and this appeal are concerned, the relevant provision had been renumbered as s 31(1)(d), which from 1 July 1997 was, so far as material,  as follows:

"31(1)A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say -

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

Paragraph (d) of s 31(1) predicates the doing of an act which is, or is an ingredient of, a criminal offence, and exempts the accused actor from criminal responsibility for doing it if the requirements of s 31(1)(d) are fulfilled. They are, first, that there must be a threat to inflict death or grievous bodily harm on the accused. It requires that the threat be to inflict immediate death or harm, and in R v Pickard [1959] Qd R 475, 476, Stanley J, speaking for the Court of Criminal Appeal, said that the word "immediate" qualified "death" and "grievous bodily harm" and obviously "cannot mean some wholly indefinite future time and place". It must, his Honour said:

"be related to some very short time after the doing or the omission of the act. Whether the length of time depends on the nature of the threatened injury or whether the section is wholly inapplicable, if some appreciable length of time must elapse before the threat is carried out, need not be discussed further in this particular case on the particular facts."

13. R v Pickard was a case in which the appellant claimed he was threatened by one Johnson that, if he did not assist in stealing the contents of a safe at premises to which he was taken, Johnson would stab him with a knife which he brandished. The appellant stayed outside the premises in the car keeping watch, while Johnson went inside and stole the safe or its contents. Stanley J said he was "not at all impressed" with the appellant's claim that he was threatened with immediate death or harm. I interpose to say that no doubt the appellant could have driven away. Johnson was absent for at least ten minutes stealing from the safe.  The appellant in the case now before the Court was not quite so well placed to escape on this occasion. According to his account, Mayne was waiting outside the fence and the other two men were in the car across the road. In any event, R v Pickard seems, in the end, to have been decided on the basis of another requirement of s 31(4), which was that the threat be made by "some person actually present and in a position to execute the threats". Stanley J considered ([1959] Qd R 475, 477) that those words had to be read strictly as meaning what they said. Absence was not actual presence and could not be equated with it. That requirement has, however, now been omitted from the section by or before the amendment of 1997. In the form in which s 31(1)(d) stood, both at the time of this offence and until very recently, it spoke not of a "person actually present" but simply of a threat "by a person in a position to execute the threats"; or, as s 31(1)(d)(i) now (since 2000) provides, "by some person in a position to carry out the threat". It is no longer necessary for the offence-constituting act to be done in the "actual presence" of that person.

14. At the trial of the appellant, his Honour recognised this difference in the ruling he gave on s 31(1)(d). He does, however, in the course of that ruling seem to me, with respect, to have shifted the emphasis from threat of "immediate" death or harm to immediate threat of death or harm. The two are by no means necessarily the same as may be illustrated, for example, by a threat that "you will be killed if you do not deliver 50 grams of heroin by the end of the month". As Stanley J said in R v Pickard, the word "immediate" in s 31 qualifies "death" and "harm", so that the threat must be that death or harm must follow immediately upon, "or some very short time after", doing or omitting to do the act that constitutes or would constitute the offence. Section 31(1)(d) does not in terms require that death or harm should follow (or be threatened to follow) immediately, or some very "short" time after, the threat itself is made. That was the very question that Stanley J left open in R v Pickard. On the other hand, it would often be difficult to see that the accused would be "unable otherwise to escape" the carrying out of the threat if it was to take effect only after the lapse of a long time.

15. It is, in my view, plainly enough a question for the jury to decide whether or not the alleged threat satisfied the requirements of paragraph (d) of s 31(1) as construed in this way. I do not suggest that in this case the learned trial judge necessarily removed that question from the jury although in redirections he did say that a threat to kill or harm in six months time "would not be a case of duress". It is not necessary to decide whether or not this amounted to a misdirection. That is so because his ruling excluding some of the evidence which the appellant proposed to adduce at the trial seems to me to have resulted in a mistrial. By that I mean to refer to the evidence that it was proposed to lead from Ms Davis, Det Maff and Mr Scholes. True, the events about which they were to be called to speak had happened as long ago as 1998, and there must be some limit to the continuing cogency and relevance of ancient threats. What, however, seems to have been advanced at the trial was that the appellant was under threat in 1998 because of his participation in what was described as "a drug trial" or drug inquiry; that the threats by Colin Mayne and the others on 4 June 1999 were a continuation or revival of those threats; that those threats were being made or renewed by people who were in a position to carry them out; and that the appellant believed himself to be unable to escape those threats being put into execution except by carrying out the act of car theft that he was told by Mayne and the others to do.

16. The operation of s 31(1)(d) depends, in some measure, on the existence of a belief on the part of the accused of his inability to escape death or grievous bodily harm to himself except by committing a criminal act. The belief in question is subjective and is not dependent on its reasonableness. On the other hand, the fact that there were reasonable grounds for believing that there was no escape from the threat must ordinarily go some way to establishing, or at least supporting, an impression that the accused might sincerely have held the belief required by s 31(1)(d). The evidence of Ms Davis and the other proposed witnesses may well have been relevant for that purpose. In that context, there was strictly no need to rely on s 24 of the Code to establish a belief in any "state of things" under that section.

17. However, although defence counsel's submissions at the trial do not perhaps make the position completely clear, the point he was making about s 24 evidently was that, even though there may not in fact have been a threat to kill or harm him, the appellant in terms of s 24 honestly and reasonably believed that there had been. One might legitimately question whether, if his own evidence failed to raise a doubt whether a threat satisfying s 31(1)(d) had in fact been made, the evidence of others would nevertheless succeed in fostering a doubt that he held an honest and reasonable belief that such a threat had been made. Much would depend on whether the events in 1998 could be seen to be in some way connected with those of 4 June 1999 so as to sustain such a belief as reasonable. But deficient though it might in the end have proved to be, it was, I consider, possible that, if the evidence had been given, some such connection might have emerged for the jury to consider. In assessing whether a case of duress has been "fairly raised" under s 31(1)(d), so as to require its rebuttal or elimination by the prosecution, a wide range of evidence is necessarily admissible to prove that  threatening conduct has taken place. Especially because the belief referred to in that provision is subjective ("believing himself … to be unable"), and need not be reasonable, it is ordinarily an error to prematurely exclude evidence that may in the end go to that issue.

18. All matters considered, it is my opinion that the evidence sought to be adduced to show the earlier threats against the appellant ought not to have been excluded, either at all or at least at the stage of the trial when his Honour ruled on it. Having been so excluded, the conviction is rendered unsafe, and there should be a new trial.

19. I would allow the appeal; set aside the conviction and verdict; and order a new trial on count 4.

20. WHITE J:  I agree with McPherson JA that in excluding evidence of the appellant and the witnesses whom he proposed to call about alleged threats to him going back to 1998 meant that all the matters which s 31(1)(d) of the Criminal Code encompassed (as it then was) were not available for consideration by the jury. Accordingly the appeal should be allowed and a new trial had in respect of count 4.

21. I also agree with his Honour that the apparently puzzling inability of the jury to reach a verdict on the alternate count of receiving the set of motor vehicle keys, having found the appellant ‘not guilty’ of stealing those keys, can be explained by at least one member of the jury being unable to accept any explanation given by the appellant in evidence, even admissions.

22. I agree with the orders proposed by McPherson JA.

23. DUTNEY J:  I have had the advantage of reading the judgment of McPherson JA. I agree with the orders he proposes and his reasons for doing so.

Orders

1.Appeal allowed

2.Conviction and verdict set aside

3.New trial ordered on count 4 in the indictment.