SUPREME COURT OF QUEENSLAND

1. KEANE JA:  On 12 October 2007 the appellant was convicted upon the verdict of a jury of one count of trafficking in the dangerous drug methylamphetamine, and one count of possessing in excess of two grams of methylamphetamine.  He had also been charged with one count of possessing a quantity of cash which was used in connection with trafficking in a dangerous drug, but the Crown declined to proceed with that count on the second day of the trial.  The appellant was tried with his co-accused, Robert John Ackers, who was acquitted of both charges.

2. The appellant was sentenced to seven years imprisonment, to be served cumulatively upon a sentence he was already serving, with a parole eligibility date fixed at 12 November 2011.

3. The appellant seeks to appeal against his convictions on the ground that the learned trial judge erred in law in withdrawing from the consideration of the jury a defence of compulsion said to have been raised under s 31(1)(d) of the Criminal Code 1899 (Qld).  I shall discuss the appellant's argument in this regard after summarising the evidence called at the trial.

The Crown case at trial

4. On 22 July 2006 police intercepted a blue Ford Falcon sedan at Helens Hill south of Ingham. The vehicle was registered in the name of the appellant, and was being driven by Ackers. The appellant was in the front passenger seat. There was a female passenger in the rear of the vehicle. Police searched the vehicle, the search process being recorded by a digital video recorder.

5. The search located a shopping bag containing $25,220 in cash in the boot of the vehicle, as well as three mobile phones and a circular white plastic container with a cling wrap wrapper around it. A search of the appellant discovered $3,200 in cash on his person.

6. The occupants of the vehicle and the vehicle were taken to the Ingham Police Station. There the vehicle was searched again, and a plastic container containing an off-white substance was found under the rear seat where the foam had been cut out to accommodate the container. Other containers were found in the vehicle, one of which had residual traces of powder. In the rear of the vehicle, a white shopping bag was found. In that bag was a white t-shirt which had been worn by the appellant and a box containing a clip seal bag with approximately 56 grams of an off-white substance.

7. An analyst's certificate established that the total weight of these substances was 2,882.138 grams, with a calculated weight of 364.213 grams of methylamphetamine. Evidence adduced by the Crown was to the effect that if the drugs were sold in ounce lots its value would be $459,000, and if it were sold in gram lots its value would be $1.15 million.

8. The appellant made no admission to the arresting police in relation to the drugs. He told the police that the money revealed by their search had been given to him by his mother.

9. At trial, there was no challenge to the Crown evidence. The only issue in the case was whether the appellant was not criminally responsible for his conduct by reason of compulsion.

The appellant's case at trial

10. The appellant gave evidence that earlier in his life he had used and sold marijuana, graduating to cocaine use in 2002. He purchased drugs from "two men by the name of Tony and Salvatore". Over time, he became indebted to them for $60,000. He was then convicted of trafficking in marijuana and ecstasy for which he was sentenced to six years imprisonment. After his release on parole on 6 December 2005, he went to live in the Cairns area where he obtained work and lived with his de facto wife, Kristy Jarvis. 

11. The appellant gave evidence of an incident which occurred on 29 May 2006. He said:

"we were in the house. I think Kristy was doing the dishes or something. I was at the table. There was a knock at a door at around 8 o'clock. I've gone to answer it and as I've answered - opened the door up the door's come flying open and someone's grabbed me by the neck … I had a bit of a scuffle with him … before I knew it I had a gun shoved down my throat."

12. He said that the two men involved in this intrusion were Tony and Salvatore. Tony was the person who was armed with the gun. Salvatore told him that they wanted the $60,000 which he owed them, and that he had four weeks in which to obtain the money. He said that they told him not to go to the police because if he did "you and your girlfriend here will end up with a bullet …". The appellant also said that he did not think that he had enough information about these men to identify them to the police. In any event, he did not inform the police of this incident. When pressed in cross-examination about his failure to report the incident and the threat to police, he said that he did not believe that:

"that is 100 per cent safe.  Secondly, that these blokes, they're not your every day drug dealers.  They're – like there's drug dealers and then there's drug dealers.  These blokes are up there.

     … And who is to say that they wouldn't – like if I tried setting them up or – they're not going to fall into a booby trap or anything like that, I believe."

13. There was also this exchange between the learned trial judge and the appellant:

"HIS HONOUR: I'm not clear - why you said you didn't go to the police?-- Why?

Yes?-- Because they specifically told us not to go to the police.

But-----?-- About anything that had happened.

But you understand that the police - it's their job to investigate criminal behaviour and bring people who have committed it before the Court and have them dealt with?-- Yeah. I would have had to go - there's - oh, protection - there was always protection there, but there's no guarantee if I was to put in - be put in police protection, that I'd still be safe.

Yes. At any rate, what do you mean by that, that - that you'd - did you weigh these things up, did you?-- Yes."

14. At the time the threats were made, the appellant's partner was pregnant. They decided that she should leave the Cairns area.  On 2 June 2006, she relocated herself to the Gold Coast. 

15. The appellant also moved house at about this time to give himself more time to get the money he owed Tony and Salvatore. He said that he contacted his step-father and was told that his mother had "around $29,000" that she could give him.

16. The two men, Tony and Salvatore, confronted the appellant at his new residence on the evening of 15 July 2006. He told them that he could let them have $29,000 and asked if he could pay the balance by instalments; but they refused this offer. Tony, who had "the same gun" as on the previous occasion, said: "You're lucky we haven't shot you already, especially with that little episode of taking off from the unit and moving away." They then said to him that he would have to give them the $29,000 and also collect something for them from Sydney in order to satisfy his debt to them.  He said that they told him not to contact the police or he would "pay for it as well as Kristy and my mother."

17. The appellant said that on the next evening Tony and Salvatore returned and told him where to go to collect "parcels" for them. They told him the measurements to cut holes in the foam underneath the rear seat of his motor vehicle in order to accommodate the parcels. He asked them: "Will my debt be clear after all this?" They told him that it would be.

18. The appellant said that he then organised to travel to Sydney.  Because he did not then have a driver's licence, he arranged for Robert Ackers to drive his vehicle.  The third person in the car when it was apprehended by the police was the appellant's then flatmate, Sarah.

19. The appellant gave evidence that he travelled to a town near Gosford in New South Wales.  On 20 July 2006 he picked up the containers from the address given him by Tony and Salvatore.  On the way back to Cairns, he stopped at his mother's place to pick up the money which he had agreed to hand over to Tony and Salvatore.  He was intercepted by the police before he reached Cairns.

20. Kristy Jarvis gave evidence which supported the appellant's account of the threat made by Tony and Salvatore to the appellant in May 2006. She confirmed that she subsequently left Cairns for the Gold Coast.  She said that she had informed the police anonymously about the appellant's journey to New South Wales in the hope that they might be able to identify and arrest Tony and Salvatore.

21. The appellant's mother, Marie Parker, gave evidence that she left about $29,000 in cash in her garage for the appellant to collect.

Section 31 of the Criminal Code

22. Section 31 of the Criminal Code is relevantly in the following terms:

"31 Justification and excuse–compulsion

(1) A person is not criminally responsible for an act … if the person does … the act under any of the following circumstances, that is to say–

…

(d)when–

(i) the person does … the act in order to save himself … or another person … from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

(ii) the person doing the act … reasonably believes he or … the other person is unable otherwise to escape the carrying out of the threat; and

3. doing the act … is reasonably proportionate to the harm or detriment threatened.

(2) However, this protection does not extend to … a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person."

The learned trial judge's ruling

23. The learned trial judge was obliged to rule on whether the evidence was sufficient to give rise to an arguable defence under s 31(1)(d) of the Criminal Code.  The learned trial judge identified the issue for decision by him in the following terms:

"The question is whether there is any evidence able to go to the jury to raise the question of duress; more specifically the question is whether there is any evidence at all which might satisfy the requirement that at the time the accused did the act alleged to constitute the offence, he did so to save himself or some other person from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat and in particular the latter requirement, namely whether the persons making the threat were, at the relevant time, in a position to carry out the threat."

24. The learned trial judge resolved the "more specific" question against the appellant on the basis that, at the time the appellant took possession of the drugs and engaged in the act of trafficking, Tony and Salvatore were not in a position to carry out their threats.

The arguments in relation to s 31(1)(d)(i)

25. The appellant argues that the learned trial judge erred in his resolution of this issue. The appellant's argument, at least as it was initially formulated, was that his Honour erred in applying the language of s 31(1)(d) as if it still contained the words, which have been deleted by amendment, "actually present" joined with the words "and in a position to execute the threat."^[1]

26. The appellant's first argument does not, it seems to me, accurately state the basis on which the learned trial judge ruled adversely to the appellant's argument. His Honour held that the appellant had failed to raise an arguable defence under s 31(1)(d) of the Criminal Code, not because Tony and Salvatore were not "actually present" with the appellant or any member of his family when he took delivery of the drugs and transported them from near Gosford to North Queensland, but because the defence had failed to adduce any evidence to show that either Tony or Salvatore were in a position to carry out their threat against either the appellant or his mother or his partner during the time when he was committing the offence.  In this regard, there was no evidence that Tony and Salvatore were in a position to harm the appellant's mother or his partner at the very time he was transporting the drugs from Sydney to Cairns.  Indeed, there is no evidence that Tony and Salvatore, or anyone acting on their behalf, were anywhere near the appellant or his family at the time the offence was being committed by the appellant.  In the absence of such evidence, the immediacy of the operation of the compulsion upon the accused which his Honour held to be required by s 31(1)(d) of the Criminal Code was lacking. 

27. There is more force in the appellant's reformulation of his argument, viz that his Honour erred in proceeding on the footing that an immediate connection between the threat and the doing of the compelled act is necessary to raise an arguable defence under s 31(1)(d). The appellant argues that it is sufficient for the purposes of s 31(1)(d)(i) if it may be inferred by him that the persons making the threat are in a position to carry out their threat even though that may occur at some time in the future.^[2] 

28. The requirement, formerly contained in s 31(1)(d), that the threatener be "actually present" when the act which would otherwise expose the actor to criminal responsibility occurs, was removed by amendments to the Criminal Code made in 1997.^[3]  These amendments also extended the defence afforded by s 31(1)(d) to threats made to persons other than the actor.  In 2000, s 31(1)(d) was further amended^[4] to insert the requirement that the threat be one of "serious harm or detriment" in place of the previous requirement that the threat be one of "immediate death or grievous bodily harm".  The effect of these sets of amendments was to expand the availability of the defence in the direction in which the common law has developed.

29. The common law has developed to recognise that the will of an accused might be overborne by a threat which was not to be carried out immediately if the threatened person did not succumb to the threat. The common law position was relevantly explained in the New South Wales Court of Criminal Appeal in R v Lawrence^[5] by Moffitt P:

"In Whelan's case (Attorney-General v Whelan [1934] IR 518 at 526) Murnaghan J said: 'It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal.' He then expressed the view that, in any case, the defence did not extend to the crime of murder. He further said: 'Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.'

     In later cases and in particular Hudson' case (R v Hudson and Taylor [1971] 2 QB 202) and Williamson's case (R v Williamson [1972] 2 NSWLR 281) these principles were applied and expanded.

     In Hudson's case (R v Hudson and Taylor [1971] 2 QB 202) what was otherwise perjury was committed by girls aged seventeen and nineteen, so it was claimed, under the influence of earlier threats by a group of men to do personal violence to them, one of the men being present in court when the girls gave the false evidence. The defence of duress was taken from the jury on the basis that the threat was not a present and immediate threat capable then and there of being carried out. On appeal, it was held that the defence of duress should have been left to the jury. Following the Privy Council decision in Subramaniam v Public Prosecutor (Subramaniam v Public Prosecutor [1956] 1 WLR 965) it was accepted that the circumstance that the threats may not be carried out immediately but, after an interval, does not exclude a conclusion that the threats had overborne the will of the appellants at the time they gave the false evidence. The decision on this point was followed in Williamson's case (R v Williamson [1972] 2 NSWLR 281 at 290)."

To similar effect, see also R v Palazoff,^[6] R v Lewis;^[7] but now see R v Z.^[8]

30. Whether or not the amendments made to s 31(1)(d) of the Criminal Code in 1997 and 2000 were intended fully to align the effect of this provision of the Criminal Code with the current position of the common law, there can be no real doubt that the intention of these amendments was to remove the requirement that the threatener be in a position to carry out the threat at the very time the offence was being committed.  It is difficult to ascribe any other intention to the legislature's deletion of the requirement that the threat which the threatener must be in a position to carry out be one of "immediate death or grievous bodily harm" (emphasis added). 

31. That being so, it is sufficient for the purposes of s 31(1)(d)(i) of the Criminal Code that the compulsion which operates on the mind of the accused at the time of his otherwise criminal act be exerted by a present threat of future harm.  Insofar as the learned trial judge seems to have taken a more restrictive view of the scope of s 31(1)(d)(i) of the Criminal Code, I respectfully disagree with that view.

32. That conclusion does not, however, serve to dispose of the appeal in the appellant's favour. The relaxation of the statutory requirement of immediacy of connection between the prospect that the threat will be carried out and the commission of the offence, was clearly not intended to permit those who engage in criminal acts to do so free of criminal responsibility simply because they are unreasonably timorous or because they find it more convenient to comply with a threat than to seek police assistance to remove that threat. Thus, in Director of Public Prosecutions for Northern Ireland v Lynch,^[9] Lord Morris of Borth-y-Gest, speaking of the common law defence of duress, said that it "must never be allowed to be the easy answer of … those who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant."^[10] 

33. Of central importance in this regard in the present case are the requirements of s 31(1)(d)(ii) of the Criminal Code which introduces objective limitations on the availability of the defence.  I turn now to consider this aspect of the matter.

The requirements of s 31(1)(d)(ii)

34. In relation to s 31(1)(d)(ii) of the Criminal Code, in R v Smith,^[11] Davies JA, with whom Fryberg and Mullins JJ agreed, said that the question which arises under s 31(1)(d)(ii) is "whether the [accused] reasonably believed that he was unable otherwise to escape the carrying out of the threat" than by carrying out the demand.  His Honour said:  "What was necessary was a reasonable belief that there was no other means … of escaping the threat."

35. On the hearing of the appeal, it was common ground that the appellant bore an evidentiary onus in relation to the defence of compulsion. It was therefore necessary for the appellant to adduce evidence sufficient to raise an arguable case that the appellant's belief was a reasonable one.

36. The requirements of s 31(1)(d)(ii) mean that those who find themselves subjected to pressure to engage in criminal activities cannot avail themselves of the defence of compulsion under s 31(1)(d) of the Criminal Code to excuse their part in criminal activities merely by reason of their subjective willingness to be used as pawns of more aggressive criminals.  It is a feature of civilised society that one may render threats of personal violence ineffective by seeking the help of agencies of law enforcement.  A defence under s 31(1)(d) can arise for the consideration of the jury only where there is an evidentiary basis for a reasonable belief on the part of the accused that he or she is "unable otherwise to escape the carrying out of the threat".  If it is to be asserted by an accused that he or she reasonably believed that there was no other means of avoiding a threat than complying with an unlawful demand then the reasonableness of that belief must be considered in the light of the other alternatives available to the accused.  That necessarily means that the accused must have a reasonable basis for believing that the law and its enforcement agencies cannot afford protection from the threat.  To adapt the language of Deane J in Jago v District Court (NSW),^[12] it is something which necessarily flows "from membership of a society in which individual and public rights are protected by laws enforced by penal sanction."

37. In the Full Court of the Supreme Court of South Australia in R v Brown,^[13] King CJ explained the position in terms which afford important guidance here even though they were made in the context of a discussion of the common law defence of duress.  His Honour said:

"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 ([1971] 2 QB 202) and Goddard v Osborne ((1978) 18 SASR 481) 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 naive 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.  If there is evidentiary material which raises a real issue as to whether the opportunity to seek police protection was a reasonable opportunity to render the threat ineffective, that issue must be left to the jury.  In the present case, however, there was no such material.  The appellant had ample opportunity to report the criminals and to place himself and his son under the protection of the authorities.  He did not take the opportunity and offered no reason for not doing so.  There was no evidence to suggest the existence of factors which might have rendered police protection ineffective.  In those circumstances it was not open, in my opinion, to a reasonable jury to find, even as a reasonable possibility, that the appellant had not had a reasonable opportunity of rendering the threat ineffective.  There was therefore, in my opinion, no issue of duress fit to be left to the jury."

38. There was, in this case, no evidentiary basis for a reasonable belief on the appellant's part that he could not avail himself of the protection of the police to render ineffective the threats by Tony and Salvatore.^[14]  The appellant had ample opportunity to alert the police to his predicament, and he called no evidence which might have established a reasonable belief on his part, either he could not alert the police, or that police assistance would not have been forthcoming and efficacious. 

39. The reasons given by the appellant which were said to explain his failure to contact the police in order to seek their protection for himself and his loved ones against Tony and Salvatore were that he was not sure that he could identify Tony and Salvatore to the police, and that he was not confident that the police could neutralise high level drug dealers such as Tony and Salvatore if he had offered the police his cooperation. It is simply not arguable that these beliefs were reasonably held.

40. The appellant's evidence must, for present purposes, be assumed to be credible; but it is to draw a red herring across the path to suggest that the appellant needed to be able to identify Tony and Salvatore to the police in order reasonably to be able to rely on the protection of the police to escape their threat to himself and his family. That is because the appellant's inability to identify Tony and Salvatore was not itself a sufficient basis for a reasonable belief that the police would not have been able to apprehend Tony and Salvatore if the appellant had chosen to cooperate with the police rather than with the criminals.

41. The appellant gave no evidence at all which might allow the jury to conclude that his professed lack of faith in the ability of the police to defeat the threat was reasonable. The appellant gave no evidence that he could not have safely made contact with the police. The appellant gave no evidence as to how the delivery of the drugs and money was to be made by him to Tony and Salvatore; but if arrangements had in fact been made by the appellant with Tony and Salvatore for the delivery of his parcels and money to them, he could have informed police of these arrangements so that they could have been apprehended at the delivery point. The threat which they posed could have been disposed of in that way. And even if no such arrangements had been made, the appellant neither gave nor called evidence to suggest any basis for believing that effective police surveillance of the appellant's residence could not have been arranged until Tony and Salvatore called to pick up their parcels and money.

42. There was simply no evidence that a belief on the appellant's part that "no amount of police protection would be effective" to enable those threatened to escape the threat posed by Tony and Salvatore was a belief which was reasonably held. Accordingly, in my respectful opinion, the appellant did not raise even an arguable case that he had met the requirements of s 31(1)(d) of the Criminal Code.  For that reason the learned trial judge's refusal to leave this defence to the jury was correct.

Section 31(2) 

43. On behalf of the respondent it was argued that s 31(2) of the Criminal Code operated so as to prevent any possible application of the protection which s 31(1)(d) might otherwise have afforded the appellant.  In the words of Baroness Hale of Richmond in R v Z:^[15] 

"[h]ad the defendant so exposed himself to the risk of such threats that he cannot now rely on them as an excuse? If even on his own story he had done so, then the defence can be withdrawn from the jury without more ado …"

44. It was argued by the respondent that the appellant's own evidence established that the appellant had entered into an unlawful association with Tony and Salvatore by reason of his dealings with them before he was sentenced to prison. It was said that, by failing to pay for the drugs he unlawfully acquired from them on credit, the appellant rendered himself liable to have such threats made to him. The appellant himself said in his evidence: "In their eyes … I think they believed that I ripped them off, which I think you can say that I did rip them off the money."

45. It will be apparent from what I have written that, in my view, it is not necessary to accept the respondent's argument based on s 31(2) of the Criminal Code in order to dispose of this appeal in the respondent's favour.  On the respondent's argument it may be open to question whether, as a matter of law, the appellant's earlier dealings with Tony and Salvatore were aptly described as "entering into an unlawful association."  It may also be open to question whether, on the evidence, the appellant rendered himself liable to have the threats in question made to him by his entry, some years earlier, into an unlawful association with Tony and Salvatore.  Because it is not necessary to decide these points, it is preferable not to enter upon an exhaustive exegesis of s 31(2) which can be of academic interest only. 

Conclusion and order

46. While my reasoning differs from that of the learned trial judge, I am respectfully of the opinion that his Honour was correct in ruling that the evidence adduced by the appellant had not raised an arguable defence under s 31(1)(d) of the Criminal Code.

47. The appeal should be dismissed.

48. FRASER JA:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the order proposed by his Honour, and with his reasons for the order.

49. LYONS J:  I have had the advantage of reading the reasons for judgment of Keane JA.  I agree with the reasons and the order proposed by his Honour.