Ajayi v The Queen
[2012] WASCA 126
•26 JUNE 2012
AJAYI -v- THE QUEEN [2012] WASCA 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 126 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:132/2011 | 1 MAY 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 26/06/12 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | BOLADE AJAYI THE QUEEN |
Catchwords: | Criminal law Appeal against conviction Importing a marketable quantity of a border controlled drug The defence of duress under s 10.2 of the Criminal Code (Cth) The defence of sudden or extraordinary emergency under s 10.3 of the Code The trial judge left the defence of duress to the jury Whether the trial judge erred by not leaving the defence of sudden or extraordinary emergency to the jury Whether the trial judge erred by not giving a 'good character' direction to the jury |
Legislation: | Acts Interpretation Act 1901 (Cth), s 15AB(1) Criminal Code (Cth), s 8.4(2), s 10.2, s 10.3, s 13.1, s 13.2, s 13.3, s 307.2(1) |
Case References: | Kia v The Queen [2011] WASCA 104 Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325 Nguyen v The Queen [2005] WASCA 22 R v Brown (1986) 43 SASR 33 R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75 R v Rogers (1996) 86 A Crim R 542 Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319 Trudgian v The State of Western Australia [2006] WASCA 271; (2006) 33 WAR 163 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AJAYI -v- THE QUEEN [2012] WASCA 126 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : EATON DCJ
File No : IND 396 of 2011
Catchwords:
Criminal law - Appeal against conviction - Importing a marketable quantity of a border controlled drug - The defence of duress under s 10.2 of the Criminal Code (Cth) - The defence of sudden or extraordinary emergency under s 10.3 of the Code - The trial judge left the defence of duress to the jury - Whether the trial judge erred by not leaving the defence of sudden or extraordinary
(Page 2)
emergency to the jury - Whether the trial judge erred by not giving a 'good character' direction to the jury
Legislation:
Acts Interpretation Act 1901 (Cth), s 15AB(1)
Criminal Code (Cth), s 8.4(2), s 10.2, s 10.3, s 13.1, s 13.2, s 13.3, s 307.2(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr A E Monisse
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Kia v The Queen [2011] WASCA 104
Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1
Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325
Nguyen v The Queen [2005] WASCA 22
R v Brown (1986) 43 SASR 33
R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75
R v Rogers (1996) 86 A Crim R 542
Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319
Trudgian v The State of Western Australia [2006] WASCA 271; (2006) 33 WAR 163
(Page 3)
1 McLURE P: I agree with Buss JA.
2 BUSS JA: The appellant was convicted, after a trial in the District Court before Eaton DCJ and a jury, on one count in an indictment which alleged that on 21 March 2010, at Perth, she imported a border controlled drug, namely cocaine, and the quantity imported was a marketable quantity, contrary to s 307.2(1) of the Criminal Code (Cth) (the Code).
3 The appellant has applied for leave to appeal against her conviction.
The Crown's case at trial
4 The Crown's case at trial was, relevantly, as follows.
5 The appellant is a Nigerian national. She was born on 13 March 1958 and was aged 52 when the offending occurred. She has three children. Another child died in 2011.
6 On 19 March 2010, the appellant, while in Nigeria, ingested 99 pellets containing cocaine.
7 The following day, 20 March 2010, she departed from Lagos for Perth on a commercial aircraft. She was accompanied by her husband.
8 Early in the morning of 21 March 2010, the appellant and her husband arrived at Perth International Airport. Upon arrival, she was searched by Australian Customs Officers after traces of cocaine were detected on her luggage. She admitted having ingested cocaine and was taken to Sir Charles Gairdner Hospital. During the next few days the appellant excreted the 99 pellets. Analysis of the cocaine revealed that it had a pure weight of 598.6 g.
The appellant's case at trial
9 The appellant gave sworn evidence in her own defence at trial.
10 She did not dispute the Crown's case that on 21 March 2010, at Perth, she imported a border controlled drug, namely cocaine, or that the quantity imported was a marketable quantity.
11 The appellant's case at trial was, in essence, that at all material times she acted under duress in importing the cocaine, further or alternatively, she imported the cocaine in response to circumstances of sudden or extraordinary emergency.
(Page 4)
The trial judge's ruling on the defences of duress and sudden or extraordinary emergency
12 At trial, defence counsel requested the trial judge to leave to the jury the defences of duress and sudden or extraordinary emergency. His Honour ruled that only the defence of duress should be left. He decided that there was no evidentiary foundation for the defence of sudden or extraordinary emergency.
The proposed grounds of appeal
13 The appellant relies on two proposed grounds of appeal.
14 Ground 1 alleges that the trial judge erred by not leaving the defence of sudden or extraordinary emergency to the jury.
15 Ground 2 alleges that his Honour erred by not giving a 'good character' direction to the jury.
Ground 1: s 10.2, s 10.3 and other relevant provisions of the Code
16 Chapter 2 of the Code is headed, 'General principles of criminal responsibility'. Chapter 2 comprises s 2.1 - s 16.4.
17 Section 10.2 and s 10.3 appear in ch 2, pt 2.3, div 10 of the Code. Part 2.3 is headed, 'Circumstances in which there is no criminal responsibility'. Division 10 is headed, 'Circumstances involving external factors'. Each of the sections in that division contains a statement of circumstances in which a person is not criminally responsible for an offence.
18 Section 10.2 is concerned with duress, and 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.
(Page 5)
- (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.
19 Section 10.2(2) requires that the accused have a reasonable belief as to the matters specified in pars (a), (b) and (c).
20 Section 10.3 is concerned with sudden or extraordinary emergency, and provides:
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
22 Section 8.4(2) states that if any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
23 By s 13.3(2), a person who wishes to deny criminal responsibility by relying on a provision of pt 2.3 (other than s 7.3) bears an 'evidential burden' in relation to that matter. In s 13.3(6), the term 'evidential burden', in relation to a matter, is defined to mean 'the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'. Section 13.3(5) provides that the question whether an evidential burden has been discharged is one of law.
24 By s 13.1(2), the prosecution bears a 'legal burden' of disproving any matter in relation to which the accused has discharged an evidential burden of proof imposed on him or her. In s 13.1(3), the term 'legal burden', in relation to a matter, is defined to mean 'the burden of proving the existence of the matter'.
(Page 6)
25 Section 13.2(1) provides that a legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
26 Chapter 2 of the Code had its genesis in the report of the Criminal Law Officers Committee of the Standing Committee of Attorneys-General (the Committee) entitled Model Criminal Code Chapter 2: General Principles of Criminal Responsibility, Final Report (1992).
27 Section 10.2 was enacted in the form recommended by the Committee. The Committee's commentary on the draft provision which became s 10.2 reads:
The Code provides that the defence of duress should contain an objective element both as to the necessity for the conduct and for the response to the threat (65).
28 Section 10.3 was also enacted in the form recommended by the Committee. The Committee's commentary on the draft provision which became s 10.3 reads:
This section recognises that an accused person is excused from committing what would otherwise be a criminal act in very limited circumstances. Like duress, the necessity of the occasion and the response to it are both subject to an objective test. The Committee's proposal is an amalgam of the principles underlying the common law of necessity and the Griffith Code equivalent (67).
29 The legislative history of s 10.2 and s 10.3 is discussed in R v Oblach [2005] NSWCCA 440; (2005) 65 NSWLR 75 [32] - [37] (Spigelman CJ).
Ground 1: an analysis of some aspects of s 10.3
30 Section 10.3(1) confers the defence. It states that a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
31 Section 10.3(2) specifies the elements of the defence. If the accused satisfies the evidential burden in relation to each of the elements (see s 13.3) and the Crown fails to negative beyond reasonable doubt at least one of the elements (see s 13.1 and s 13.2), then the accused will be taken to have carried out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency within s 10.3(1).
(Page 7)
32 As to s 10.3(2)(a), it is an element of the defence that, at the material time, the accused reasonably believed that 'circumstances of sudden or extraordinary emergency [existed]'. This element incorporates a subjective component and an objective component. The subjective component is the existence of a belief by the accused that circumstances of sudden or extraordinary emergency existed. The objective component is that any such subjective belief by the accused must have been reasonable.
33 It is unnecessary for an emergency to be both sudden and extraordinary. The emergency may be either sudden or extraordinary. See Nguyen v The Queen [2005] WASCA 22 [17] (Templeman J, Murray J agreeing & McLure J agreeing generally).
34 However, the concepts of a 'sudden' emergency and an 'extraordinary' emergency may, in a particular case, overlap. That is, an emergency may, in a particular case, be both 'sudden' and 'extraordinary'.
35 The phrase 'sudden or extraordinary emergency' in s 10.3 bears its natural and ordinary meaning. This is apparent from the statutory text and the decision of the Parliament not to define the phrase or any of the words that comprise it.
36 By s 15AB(1) of the Acts Interpretation Act 1901 (Cth), relevantly, in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act.
37 The Committee, in its commentary on the draft provision which became s 10.3, made these comments in relation to the phrase 'sudden or extraordinary emergency':
In response to the submission of the Northern Territory Criminal Law Association, the section has been redrafted so that the words 'sudden or extraordinary emergency' are not defined in terms of 'an urgent situation of imminent peril' (see Discussion Draft s 312.1) but left to the jury as ordinary words in the English language (67).
38 Similar comments also appear in the explanatory memorandum to the Bill which, upon enactment, became the Code. The memorandum states in relation to the proposed s 10.3, relevantly:
(Page 8)
- The proposed section has been redrafted so that the words 'sudden or extraordinary emergency' are not defined in terms of 'an urgent situation of imminent peril' but are left to the jury as ordinary words in the English language (31).
39 The provisions of the Committee's commentary and the explanatory memorandum, to which I have referred, are capable of assisting in the ascertainment of the meaning of s 10.3(2)(a). They confirm that the phrase 'sudden or extraordinary emergency' in s 10.3(2)(a) bears its natural and ordinary meaning. This is consistent with the context in which the phrase appears and the purpose or object underlying s 10.3.
40 In Nguyen, Templeman J (Murray J agreeing & McLure J agreeing generally) made these observations about s 10.3:
(a) It may be relevant, in deciding whether an emergency is sudden or extraordinary, to have regard to the time which elapsed between the accused becoming aware of the emergency, on the one hand, and his or her acting in response to it, on the other. However, delay is not a 'determinative factor'.
(b) The Crown cannot negative the defence by proving that no sudden or extraordinary emergency in fact existed. Although the absence of an actual sudden or extraordinary emergency may be a relevant factor, the ultimate question is whether the accused reasonably believed, in terms of s 10.3(2)(a), that circumstances of sudden or extraordinary emergency existed. See [17].
41 As to s 10.3(2)(b), it is an element of the defence that, at the material time, the accused reasonably believed that 'committing the offence [was] the only reasonable way to deal with the emergency'. The term 'the emergency' in s 10.3(2)(b) refers to the circumstances of sudden or extraordinary emergency within s 10.3(2)(a) that the accused reasonably believed existed. The element in s 10.3(2)(b) also incorporates both a subjective component and an objective component. The subjective component is the existence of a belief by the accused that committing the offence was the only reasonable way to deal with the circumstances of sudden or extraordinary emergency that he or she reasonably believed existed. The objective component is that any such subjective belief by the accused about the only reasonable way to deal with the circumstances must have been reasonable.
42 As to s 10.3(2)(c), it is an element of the defence that, at the material time, the accused reasonably believed that 'the conduct [was] a reasonable
(Page 9)
- response to the emergency'. The term 'the emergency' in s 10.3(2)(c) refers to the circumstances of sudden or extraordinary emergency within s 10.3(2)(a) that the accused reasonably believed existed. The element in s 10.3(2)(c) also incorporates both a subjective component and an objective component. The subjective component is the existence of a belief by the accused that the conduct (that is, the conduct constituting the offence) was a reasonable response to the circumstances of sudden or extraordinary emergency that he or she reasonably believed existed. The objective component is that any such subjective belief by the accused about the reasonableness of his or her response must have been reasonable.
43 If an accused satisfies the evidential burden in relation to the defence of sudden or extraordinary emergency under s 10.3, the Crown may discharge the legal burden of negating the defence by proving beyond reasonable doubt that:
(a) the accused did not subjectively believe that circumstances of sudden or extraordinary emergency existed; or
(b) it was not objectively reasonable for the accused subjectively to believe that circumstances of sudden or extraordinary emergency existed; or
(c) the accused did not subjectively believe that committing the offence was the only reasonable way to deal with the emergency; or
(d) it was not objectively reasonable for the accused subjectively to believe that committing the offence was the only reasonable way to deal with the emergency; or
(e) the accused did not subjectively believe that the conduct constituting the offence was a reasonable response to the emergency; or
(f) it was not objectively reasonable for the accused subjectively to believe that the conduct constituting the offence was a reasonable response to the emergency.
44 It is unnecessary, in this appeal, to examine the scope of the objective components embodied in s 10.3(2). See, generally, Oblach [74] (Sully J); Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325 [135] - [140] (McLure JA), [168] - [169] (Buss JA); Kia v The Queen
(Page 10)
- [2011] WASCA 104 [20] - [23] (McLure P, Martin CJ & Mazza J agreeing); s 8.4(2) of the Code. I will assume, favourably to the appellant, that the reasonableness of any subjective belief as to the matters specified in pars (a), (b) and (c) of s 10.3(2) may be determined by reference to the appellant's personal characteristics, to the extent that they are discernible from the conduct of the trial or the evidence. See Kia [20] - [25].
Ground 1: the trial judge's reasons for refusing to leave to the jury the defence of sudden or extraordinary emergency
45 The trial judge's reasons for refusing to leave to the jury the defence of sudden or extraordinary emergency were as follows:
The evidence of Mrs Ayaji, thus far, suggests that there were a number of factors which were relevant to the circumstances in which she found herself. One of the people who was urging upon her the need to commit the offence was indeed her husband of some 23 years, a man suffering, it seems, from HIV, and in need of very expensive medication in order to survive.
Another person urging upon her the illegal course of conduct was his friend of some eight or nine years, Mr Badamosi, who it seems was the person who first raised with Mrs Ajayi the prospect that she must travel to Australia within days on the Wednesday morning in a telephone call before her arrival at Perth Airport on the following Sunday. A third person became involved, in the form of Mr Csuks, who she later met, I think, at the Royal Park Hotel in the centre of Lagos in, as she said, a well to do or rich area of that city. She enunciated a threat made to her on more than one occasion by way of words and gesture, which in combination, she says, meant that she was threatened that if she did not commit the offence of importation of drugs into Australia, her mother and/or children might be harmed and/or killed.
The passage of time is clearly not necessarily determinative of whether the defence of sudden or extraordinary emergency should be left to the jury. But in this case, there is a period of several days leading up to her departure, during which time there were a number of discussions or encounters with her husband and Mr Badamosi, Mr Csuks, and others, including, I think, a boy unnamed and a doctor, along with, towards the end, it seems, contact with people at Lagos Airport. None of those circumstance[s], it seems to me, suggest any unforeseen or sudden occurrence.
The defence of duress is very clearly relied upon, and will be left to the jury. If she were, in the context of the threat which she said was made to her, to complete the assignment, that is, to import the drugs into Australia, then there would be no harm to anybody.
(Page 11)
- The threat made to her was clearly, if her evidence is accepted, that if she didn’t do what was required of her then harm to those people might occur.
Between the initial telephone discussion on the Wednesday morning with Badmosi and her eventual departure from Lagos Airport with her husband with the drugs internally [concealed], there was, as I've said, a good deal of discussion not only with her husband but with others said to be involved.
During the course of those discussions right from the outset according to her evidence, she indicated an unwillingness to go. And she indicated, as I say, that on more than one occasion.
In fact, it was more than an enunciated unwillingness to go it was an enunciated refusal to go. As I say, there were a number of factors impinging upon her decision making which included the threat which she says was made to her of harm to herself and her children.
It'll be a matter for the jury to decide whether or not the defence of duress is excluded beyond reasonable doubt by the Commonwealth.
Returning to the need in that scenario for there to be an evidentiary foundation to enable the operation of the defence of sudden or extraordinary emergency, I take the view that it's not present.
I take the view that in his submissions in that regard, Mr Monisse has really confused the factors which give rise to the defence of duress with the defence of sudden or extraordinary emergency suggesting that the presence of the threat amounted, in effect, to a sudden or extraordinary emergency.
Clearly, it wasn’t a sudden or extraordinary emergency in the sense that it was over the period of time between the proposition of travel to Australia first being promoted and the departure for Australia.
And for that matter, the arrival in Australia at Perth Airport with the drugs internally concealed. There was a good deal of discussion and resistance to the proposition.
In all of those circumstances, it does not seem to me that it is not appropriate in this case to leave to the jury the defence of sudden or extraordinary emergency. It's entirely appropriate to leave the defence of duress having regard to the evidence of Mrs Ajayi.
But the submission that the defence of sudden or extraordinary emergency has an evidentiary foundation, to my way of thinking, in essence, confuses the two defences. In truth, there is no evidentiary basis for leaving sudden or extraordinary emergency to the jury and I propose not to do so (ts 321 - 323).
(Page 12)
Ground 1: the factual basis for the alleged defence of duress and the alleged defence of sudden or extraordinary emergency
46 Before this court, counsel for the appellant (who was defence counsel at trial) said that the factual basis for the alleged defence of duress was also the factual basis for the alleged defence of sudden or extraordinary emergency (appeal ts 4).
47 The alleged duress comprised the threat of physical danger to the appellant's immediate family if she did not comply with the request to transport prohibited drugs to Australia (appeal ts 4).
48 Counsel attempted to distinguish the alleged duress from the alleged sudden or extraordinary emergency by claiming that the sudden, alternatively the extraordinary, emergency was the existence of physical danger to the appellant's immediate family if she did not transport prohibited drugs to Australia, without regard to the source of the danger (that is, without regard to the making of the threat) (appeal ts 4 - 5).
Ground 1: its merits
49 In my opinion, ground 1 has no reasonable prospect of success. I am of that opinion for two reasons.
50 First, the appellant did not satisfy the evidential burden in relation to those objective elements of s 10.3(2) which required it to have been reasonable for her subjectively to believe that:
(a) committing the offence was the only reasonable way to deal with the alleged sudden or extraordinary emergency; or
(b) the conduct constituting the offence was a reasonable response to the alleged emergency.
51 In R v Brown (1986) 43 SASR 33, the appellant appealed against his conviction by a jury of the crime of possession of prohibited imports (being illicit drugs), contrary to s 233B(1) of the Customs Act 1901 (Cth). On appeal, one of the issues was whether there was sufficient evidence, fit to be left to the jury, as to whether the appellant was acting under duress. King CJ 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
(Page 13)
- would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.
The cases R 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 (40).
52 Similarly, in R v Rogers (1996) 86 A Crim R 542, the appellant was convicted of attempting to escape from lawful custody. He appealed against his conviction on the ground that the trial judge erred in failing to leave to the jury the defence of necessity. He alleged that he had attempted to escape from prison because he feared a life-threatening attack was going to be committed on him and he declined to be placed in protection by the prison authorities because he considered that would place him in greater danger. Gleeson CJ (Clarke JA & Ireland J agreeing) observed:
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 (546).
- See also Morris [153] - [156] (McLure JA).
53 In the present case, on the evidence as a whole, it was not open to the jury to find, as a reasonable possibility, that at the material time the appellant reasonably believed that:
(a) committing the offence was the only reasonable way to deal with the alleged sudden or extraordinary emergency; or
(b) the conduct constituting the offence was a reasonable response to the alleged emergency.
54 At the material time, and on the evidence as a whole, the only reasonable belief open to the appellant, in relation to the factual basis for the alleged sudden or extraordinary emergency, was that reporting the relevant facts and circumstances:
(Page 14)
- (a) to the authorities (for example, at Perth International Airport immediately upon her arrival);
(b) further or alternatively, to the captain or senior purser of the aircraft while it was in transit to Perth,
was a reasonable way to deal with the alleged emergency, further or alternatively, a reasonable response to the alleged emergency.
55 Indeed, after the appellant was searched by Australian Customs Officers upon her arrival at Perth International Airport and upon traces of cocaine being detected on her luggage, she admitted, in essence, that she had imported a border controlled drug by ingesting cocaine.
56 Secondly, although the concept of a sudden or extraordinary emergency (within s 10.3 of the Code) will, at least sometimes, have a broader connotation than the concept of duress (within s 10.2 of the Code), it is necessary, in each case where a distinction is sought to be drawn between the defences, to examine the extent to which the source of the conduct giving rise to the alleged sudden or extraordinary emergency overlapped with the source of the conduct giving rise to the alleged duress.
57 In the present case, there was no material difference between the factual basis for the alleged defence of duress, on the one hand, and the factual basis for the alleged defence of sudden or extraordinary emergency, on the other. The alleged threat, which underpinned the alleged defence of duress, also underpinned the alleged defence of sudden or extraordinary emergency. The making of the threat cannot be ignored for the purpose of attempting to distinguish between each of the defences. The substance of the alleged duress, namely the threat of physical danger to the appellant's immediate family if she did not comply with the request to transport prohibited drugs to Australia, was also the substance of the alleged sudden or extraordinary emergency.
58 Although s 10.2(2) refers to 'a threat', and s 10.3(2) refers to 'circumstances of sudden or extraordinary emergency', as I have mentioned there was no material difference in substance, in the present case, between the factual basis for the alleged 'threat' and the factual basis for the alleged 'circumstances of sudden or extraordinary emergency'. It follows that, in the present case, there was no relevant distinction of fact between pars (a), (b) and (c) of s 10.2(2), on the one hand, and pars (a), (b) and (c) of s 10.3(2), on the other.
(Page 15)
59 The jury, by its verdict of guilty, necessarily concluded that the Crown had discharged the legal burden of negating, beyond reasonable doubt, the defence of duress.
60 In these circumstances, it is not reasonably arguable that the appellant suffered a miscarriage of justice as a result of the trial judge failing to leave to the jury the defence of sudden or extraordinary emergency.
Ground 2: the alleged evidence of good character
61 At trial, defence counsel requested the trial judge to give the jury a 'good character' direction on the basis of evidence given by the Crown's witness, Federal Agent Andrew Riches, and the appellant's evidence that she had no prior criminal record. His Honour declined to give this direction.
62 Federal Agent Riches supervised the appellant over a period of three days while she was in Sir Charles Gairdner Hospital excreting the 99 pellets containing cocaine. He was assisted by a number of other federal agents during that time.
63 Federal Agent Riches said, in cross-examination, that his impression of the appellant, formed during this three-day period, was that she was a 'decent' person (ts 140). Later in cross-examination, the following exchange occurred between Federal Agent Riches and defence counsel:
[T]he comments that you made yesterday in relation to your assessment of [the appellant], that is … that she was a decent person?---I remember that, those comments, yes, and I still stick with that, yes.
Yes. A decent person who was trying to help the police investigation in Australia?---Yes, to whatever degree that she could, yes.
But in terms of your assessment of her decency as a person that was in the context of you having spent by that stage some three days with her?---Yes.
You'd got to know her in that time?---To some degree, yes, … an assessment of the person who was in front of me and maybe a small bit of the character there … I think she attempted to cooperate as much as she possibly could (ts 189).
64 The Crown accepted that the appellant did not have a prior criminal record in Nigeria or Australia.
(Page 16)
Ground 2: the trial judge's reasons
65 The trial judge gave the following reasons for declining to give the jury a 'good character' direction:
Character evidence, when it's offered on behalf of an accused, is usually to the effect that somebody is of good standing in the community.
And it's usually from somebody who is in a position to say something … to the effect that they have known the person for … a reasonable time, a number of years more often than not and that they're able to tell the jury of that person's reputation and standing within the community.
In those circumstances, character evidence is usually the subject of a direction [to] the jury … to the effect that they can take the evidence of the person's good character into account in considering whether they're the sort of person who would be likely to commit the offence alleged against them and in considering as to whether they are likely to have been truthful.
I'm not going to give a direction on those lines because in my view no reliable character evidence has been given. It's an opinion expressed by a police officer whose known the person for about three days (ts 327).
Ground 2: its merits
66 In Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, the High Court decided not to depart from the rule that a trial judge is not obliged to direct a jury about an accused's good character, but has a discretion as to whether to give a direction after evaluating the probative significance of the evidence in relation to the accused's propensity to commit the crime charged and the accused's credibility. See McHugh J [22] - [32], Gummow J [75] - [79] and Hayne J [154] - [157]. See also Trudgian v The State of Western Australia [2006] WASCA 271; (2006) 33 WAR 163 [36] (Steytler P, Roberts-Smith & McLure JJA agreeing).
67 In Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319, the High Court held that no miscarriage of justice occurred when the trial judge failed to direct the jury as to the manner in which they could use evidence that the accused was a person of good character. Gibbs, Stephen, Mason, Murphy and Wilson JJ said:
There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg v Schmahl ([1965] VR 745, at p 750). No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it.
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- In the present case no direction as to the evidence of the applicant's good character was asked for. There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved (333 - 334).
68 In my opinion, ground 2 has no reasonable prospect of success. I am of that opinion for the following reasons.
69 First, the alleged 'character evidence' given by Federal Agent Riches was lacking in probative force. He had limited contact with the appellant over a period of three days. He was unable to give any evidence as to her alleged good character or reputation. He merely said that she appeared to him to be a 'decent' person.
70 Secondly, as I have mentioned, the Crown accepted that the appellant did not have a prior criminal record in Nigeria or Australia. Federal Agent Riches made inquiry about the appellant with the authorities in Nigeria. The appellant had not previously visited Australia. However, the absence of a prior criminal record was of limited relevance to the issues at trial.
71 The defence acknowledged that the appellant had in fact imported a border controlled drug, namely cocaine, and that the quantity imported was a marketable quantity. The appellant's evidence was primarily relevant to the making of the alleged threat and whether she subjectively believed the matters referred to in s 10.2(2).
72 The Crown did not dispute that the appellant had transported the cocaine to Australia because money was required in order to fund medical treatment for her husband and to provide physical support for her children.
73 Even if the jury thought there was a reasonable possibility that, at the material time, the appellant had the subjective beliefs referred to in s 10.2(2), this would not, of itself, have resulted in an acquittal. The defence of duress also includes objective elements. The Crown may discharge the legal burden of negating the defence by proving beyond reasonable doubt the absence of one of the elements of the defence.
74 Thirdly, it would have been obvious to the jury that the impression of the appellant formed by Federal Agent Riches, and the absence of a prior criminal record, were of some relevance to the appellant's propensity to
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- commit the offence in question and to her credibility. There is no reason to doubt that the jury would have given this evidence such weight as it deserved without a direction being given.
75 Fourthly, if the trial judge had decided to give the jury a 'good character' direction, it would, no doubt, have been open to his Honour to remind the jury that people do commit crimes for the first time, and that any impression formed by Federal Agent Riches and the absence of a prior criminal record could not prevail against evidence of guilt which the jury found to be proved. Also, it would have been open to his Honour to tell the jury that in illicit drug importation cases it is not uncommon for a person who is unknown to the authorities to be chosen as a drug mule in order to minimise the risk of detection. These additional instructions, if given, would not have been to the appellant's advantage.
76 It is not reasonably arguable that the trial judge erred in the exercise of his discretion in declining to give a 'good character' direction. Further, it is not reasonably arguable that the appellant suffered a miscarriage of justice as a result of his Honour declining to give this direction.
Conclusion
77 Leave to appeal should be refused and the appeal dismissed.
78 MAZZA JA: I agree with Buss JA.
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