Kate Victoria Goodwin v Kimberly Louise Neiberding

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kate Victoria Goodwin v Kimberly Louise Neiberding
Citation:	[2019] ACTMC 2
Hearing Dates:	16 January 2019
DecisionDate:	21 January 2019
Before:	Magistrate Fryar
Decision:	See [16]
Catchwords:	DURESS – reasonable belief – reasonable grounds for belief – reasonable possibility the existence of reasonable grounds for belief – no reasonable way to make the threat ineffective.
Legislation Cited:	Corrections Management Act 2007 (ACT), section 145(1) Criminal Code 2002 (ACT), section 40 Criminal Code Act 1899 (QLD)
Cases Cited:	Taiapa v R (2009) 240 CLR 95 Marwey v the Queen (1977) 138 CLR 630 R v Rogers (1996) 86 A Crim R 542
Parties:	Kate Victoria Goodwin (Informant) Kimberly Louise Neiberding (Defendant)
Representation:	Mr Walker (Informant) Mr McKenna (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) McKenna Taylor Criminal Defence Lawyers (Defendant)
File Number:	CC18/4331-2

MAGISTRATE FRYAR:

Introduction

The defendant was charged with one count of taking a prohibited thing into a correctional centre (section 145(1)(a) Corrections Management Act 2007 (ACT)) and one count of giving a prohibited thing to a detainee (section 145(1)(b) Corrections Management Act 2007 (ACT)). In essence all the facts of the matter are not in issue and that the elements of both offences have been made out is conceded by the defence.
The defendant has raised the defence of duress which is set out in the Criminal Code 2002 (ACT) at section 40 and applies to these offences. In particular, section 40(2) states:
“ A person carries out conduct under duress only if the person 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 to make the threat ineffective; and
(c)    the conduct is a reasonable response to the threat.”
The defendant has the evidential burden of raising the defence of duress, and then the prosecution bears the legal onus of proving beyond a reasonable doubt that the defence is not made out.

The facts

The evidence of the ‘threat’ was that the defendant was visited in the evening at her home by a man she did not know, and who refused to provide his name. He knew that on the next day she was due to visit her son who was a remandee at the Alexander Maconachie Centre. He handed her three small balloons (which she suspected contained drugs) and he was insistent that she must hand them to her son during the visit, otherwise her son would suffer consequences, and it would be to his detriment. She took that to be a threat that her son would be harmed, and she drew the inference based on, inter alia, the fact that she had seen her son in court a few weeks earlier with a black eye and during a phone call with her son he told her he had been knocked out twice.
I accept that a threat had been made by this unknown male and that the defendant believed that the threat would be carried out if she did not commit the offence that she was told to.

Duress

The real issues in this matter arise in relation to the second and third limbs of the test for the defence. The facts the defendant relied on in relation to whether she reasonably believed there was no reasonable way to make the threat ineffective were as follows. The defendant gave evidence both in court and in her Taped Record of Interview with the police that after the man left her home she considered ringing the police and the gaol, but she concluded that she would likely exacerbate the threat. She thought that the only way to keep her son safe was to deliver the balloons to him as she had been told to.
Under cross-examination the defendant agreed that the police were the appropriate agency to report the threat to, or that she could have spoken to an officer at the AMC when she attended there. She also agreed she had opportunity to do either of those things before actually giving the balloons to her son. She said that she did not report it because she thought that “they couldn’t keep him safe if I reported it, they couldn’t protect him inside the AMC.” She said that she did not know who he was actually in custody with and she had no idea about what access the people who might harm her son had to him and so she made an assumption. She expressed the view that to go to the management protection unit is frowned upon and that people who do become a target when they come out of there.
I was assisted by the submissions and authorities referred to by both parties. Mr Walker, for the prosecution, referred me to the High Court case of Taiapa v R (2009) 240 CLR 95 (“Taiapa”) as authority in relation to this issue. The High Court granted special leave to appeal from a decision of the Court of Appeal in Queensland in relation to the application of the appropriate section in the Criminal Code Act 1899 (QLD), which although not expressed in exactly the same form, is essentially on the same basis as section 40 of the Criminal Code 2002 (ACT). His submission was that the defendant had not discharged her evidentiary burden so that the defence of duress can properly be raised.
Mr McKenna, for the defendant, submitted that Taiapa was distinguishable, but I disagree. True it is that the facts are quite different to those in this matter, but the issues involved with regard to the interpretation of the test to be applied are in my opinion exactly the same as the ones I have to consider in this matter. Of course as a Magistrate I am bound by relevant decisions of the High Court.
It is useful in my view to look briefly at the case of Taiapa. The accused, Dion Taiapa, was charged with possession of and trafficking in dangerous drugs. The evidence was that he was twice threatened at gunpoint by drug dealers (his family was also threatened) to commit the offences and not to go to police. His evidence was that the only option he thought he had was to do as he was told as he did not want either his family or himself to be killed. He agreed he had ample opportunity to seek the assistance of the police but said he did not do so as he did not have sufficient information to enable the police to identify his assailants, he did not believe that police protection was 100 per cent safe and that he thought the drug dealers were unlikely to fall into a trap.
The Queensland Court of Appeal said in its decision that the statutory version of the defence of duress was,
“not intended to permit those who engage in criminal acts to do so free of criminal responsibility because they are ‘unreasonably timorous’ or because they find it more convenient to comply with a threat than to seek the assistance of the police to remove it.” The Court continued – “(this) means that those who find themselves subjected to pressure to engage in criminal activities cannot avail themselves of the defence of compulsion under ... 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 s31(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.”
Later the High Court repeated with approval the observations of Stephen J in Marwey v the Queen (1977) 138 CLR 630 at paragraph 641, that to ask whether a person has a “reasonable belief” is not different in substance from asking whether a person has “reasonable grounds for belief.” Further relevantly the Court quoted Gleeson CJ’s observations in R v Rogers (1996) 86 A Crim R 542 as follows:
“Reasonableness is not designed to allow people to choose for themselves whether to obey the law ... a reluctance or ... an unwillingness to go on protection may be understandable, but the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody.”
These are all relevant observations in the case before me.
The High Court, in upholding the Court of Appeal, then held that it is necessary for the accused to identify some basis in the evidence raising as a reasonable possibility the existence of reasonable grounds for his belief. In the case before them the Court said that:
“The applicant’s belief that police protection may not be 100% 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 particularised 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 evidence the defence here referred to could be described as evidence as to why the defendant arrived at the assumptions she made about the ability of the authorities to keep her son safe. It did not, in my view, go to the reasonableness of making those assumptions.
That is the defendant here only provided evidence of holding a belief, but was unable to provide any evidence on which I could be satisfied there were reasonable grounds to hold that belief. The fact that her son had been assaulted in custody was not evidence that if the authorities had known of the threat made to her that proper investigations would not or could not have occurred, and appropriate steps would not or could not be taken to render the threat ineffective.
Accordingly I agree with the submissions of the prosecution that the defendant has not discharged the evidentiary burden on her. Accordingly I am satisfied, in relation to both section 40(2)(b) and (c) limbs, that there were not reasonable grounds for the defendant’s belief. Hence the defence of duress is not available to her. I find the offences proved.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Magistrate Fryar.

Associate: Emma Bayliss

Date: 22 January 2019

[2019] ACTMC 2

21 January 2019