Lum v The State of Western Australia - [2017] WASCA 22

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LUM -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 22

CORAM: NEWNES JA
MAZZA JA
BEECH J

HEARD: 12 DECEMBER 2016

DELIVERED : 3 FEBRUARY 2017

FILE NO/S: CACR 1 of 2016

BETWEEN: FOOK LOONG LUM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 429 of 2015

Catchwords:

Criminal law - Appeal against conviction - Two counts of selling methylamphetamine - Misuse of Drugs Act 1981 (WA), s 6(1)(c) - Defence of duress - Alleged threats made to appellant in respect of appellant's son - Whether primary judge erred in failing to direct jury that duress may arise from threats in respect of appellant's son and from threats capable of being carried out at later time or place - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms E Needham
Respondent: Mr J A Scholz

Solicitors:

Appellant: Elizabeth Needham
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cooper v The State of Western Australia [2010] WASCA 190
Mahmood v The State of Western Australia [2009] WASCA 220
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Russell-Miles v The State of Western Australia [2012] WASCA 57
SGH v The State of Western Australia [2016] WASCA 161
Smith v The State of Western Australia [2010] WASCA 205

JUDGMENT OF THE COURT: On 15 December 2015, the appellant was convicted after a two day trial in the District Court on two counts of selling a prohibited drug, namely N,N-dimethylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA). The appellant seeks leave to appeal against his conviction, contending that the primary judge failed properly to direct the jury on the defence of duress.
For the following reasons, we would refuse leave to appeal, with the result that the appeal is dismissed.

Background

The prosecution case

On 14 February 2011, an undercover police officer, known as 'Tony', arranged to meet an associate of the appellant's, known as 'Jacky', at a house in Karawara. When Tony arrived, the appellant was at the house but Jacky had not arrived. The appellant introduced himself to Tony. When Jacky arrived he had a discussion with Tony, in the appellant's presence, about drugs, in the course of which Jacky agreed to supply Tony with a sample of methylamphetamine
On 25 February 2011, Tony met Jacky at a café in Applecross. Jacky told him that the methylamphetamine they had spoken about had arrived from overseas.
There was a further meeting, on 10 March 2011, at a café in Applecross, at which Jacky gave Tony a clipseal bag containing what subsequent analysis established to be 0.94 g of dimethylamphetamine. Tony gave Jacky $600 in cash. The prosecution case was that the appellant attended that meeting but at trial the appellant denied he was there. Nothing turns on that.
That evening Tony sent a text to Jacky saying that he was happy with the sample.
On 17 March 2011, Tony had a telephone conversation with Jacky in which Tony arranged to buy a quantity of methylamphetamine on 18 March 2011 at a café in Applecross. When they met at the café the following day, it was turned out there had been a misunderstanding about the quantity Tony wanted. Jacky had brought with him only 3.5 g, rather than the ounce of methylamphetamine that Tony sought. Jacky made a telephone call and then informed Tony that the price of an ounce of methylamphetamine was $14,500. They agreed to meet later that afternoon.
That meeting occurred at 3.30 pm that day. When Jacky arrived he got into Tony's car and asked to see the money. Tony produced it and Jacky counted it. They both then got out of the car and walked to a nearby corner. The appellant drove up and Jacky asked Tony to get into the passenger's seat. The appellant and Tony went for a short drive, during which the appellant asked Tony if he had the money. Tony produced it and the appellant asked to count it. Tony refused, saying that Jacky had already counted it. Tony placed the money on the dashboard of the car and the appellant pointed to a package in the front passenger footwell of the car. Tony took the package. On subsequent analysis the package was found to contain 28 g of dimethylamphetamine in white crystal form (count 1).
On 24 March 2011, Tony and another undercover police officer, 'Jason', had a conversation with Jacky about drugs. Subsequently, Tony arranged with Jacky to buy another ounce of methylamphetamine.
On 12 April 2011, Tony and Jason went to a café in Applecross where they met the appellant, who told them that Jacky was waiting in the rear carpark. Tony and Jason went to the carpark. After they had assured Jacky that they had the money, Jacky made a telephone call. A few minutes later the appellant drove into the carpark and got out of his car. He spoke to Jacky in a foreign language. Tony and the appellant then went to the appellant's car and the appellant gestured to the footwell where there was a clipseal bag containing white crystal. Tony took the clipseal bag and Jason gave Jacky $14,000. On subsequent analysis, the clipseal bag was found to contain 28 g of dimethylamphetamine (count 2).

The defence case

The appellant did not dispute the material facts in the prosecution case. His case was that at all times he had acted under duress.
The appellant gave evidence that he had met Jacky in 2007 or 2008 and they had become friends. In about 2008 or 2009, the appellant was unable to meet the mortgage payments on his home and he borrowed $2,000 from Jacky to do so. The appellant said that he was unable to repay the money to Jacky and Jacky kept pressing him for it. According to the appellant, Jacky finally said to him:
You have to pay. If you pay - you can't get away. Even if you can, your son cannot. (ts 70)
The appellant said that subsequently Jacky asked him to carry out a delivery of drugs. He gave the following evidence:
And what was it [Jacky] was telling you he wanted you to do?‑‑‑He asked me to do delivery.
Delivery of what?‑‑‑As he said, the - the - drugs, you know.
And where were you when he mentioned that to you?‑‑‑Always he come to me but before that he (indistinct) but the day urgent he came to my place, all right? He asked me. 'You put down there, you don't worry. Just do what I tell you. If - I - as I say you can't run. This is it, you know.'
How - when he said you can't run and made the comment about your son? ‑‑‑Yes.
How did you feel about that?‑‑‑I tell you, I got no option. The concern about my son, you know, come here to study. He threaten my son. He say - he say I can run, yes, but how - how was my son going to run. I got no option (ts 72).
The appellant said he had initially refused to be involved in the delivery of the drugs because he came from Singapore where dealing in drugs carried the death penalty, but he agreed to do so when Jacky threatened his family. He gave the following evidence:
What did [Jacky] say to you?‑‑‑He said - he said 'Don't worry', don't touch. No, I got no choice. He said he going to kill my - he concern my family.
You said something about you don't touch‑‑‑He asked me not to touch. He said, 'As long as you don't touch it's okay.' And then you - you know, you have - before that, he said you kill my - my family.
Right?‑‑‑I got no choice. I have to listen to him and do what I want to do (ts 73).
The appellant was asked by his counsel why he was involved in the sale of the drugs on 12 April 2011. His evidence was as follows:
All right. Now, why - why did you do that that day?---As I said, he always (indistinct) threat. As I say, I've got no choice. He been pressing me too hard. As I say, I still owe him money. I've got no choice because I seen he's so powerful, I see the Hong Kong, he got all the connection. And down here whenever he go out he got few people follow him and the threat, you know, I - I'm just a normal people you know?
All right?‑‑‑He threaten my son. That's the worse thing. I got no choice. (ts 78)
The appellant gave evidence that after the loan was repaid and the appellant's son had returned to Singapore, he had refused to be involved in drug dealing:
Were you ever asked by Jacky to be involved in this sort of thing ever again after [12 April 2011]?‑‑‑He tried but I no. I tell him no.
Why - or how was it that you were able to - to tell him no then?‑‑‑Because after my son was going back to Singapore - I asked my son to go to Singapore then I tell him. (ts 79)
The appellant was cross‑examined at some length about the alleged threats. He maintained that he was involved in the drug sales only because of the threats to his son. It is unnecessary to canvass the cross‑examination in detail. It is sufficient to refer to the following.
In the course of the cross‑examination, it was put to the appellant that at the meeting on 14 February 2011 he had asked Tony whether Tony had requested Jacky to supply Tony with stuff. The appellant denied it.
You don't accept that?‑‑‑As I said, the whole thing, the dealing, I agreed to that but I was trapped. Jacky put the threat and asked me to certain him and everything, okay?
Yes?‑‑‑I definitely - I scared Jacky. I - I don't scared Jacky, I scared my son (ts 90).
Later, in cross‑examination about the sale on 18 March 2011, it was put to the appellant that he did not have to drive to the location of the drug deal.
You could have driven somewhere else?‑‑‑I cannot. When - when he's giving me the threat, how - how could I (indistinct) if I ring the police (indistinct) I sell drug because the threat is on, because concern about my son.
When you were on your way there you didn't go and see any of your family did you?‑‑‑No
…
You didn't go to any of your - your family and say, 'Help me, I've gotten myself into this horrible situation', did you?‑‑‑My mum was (indistinct) I already owe her. I go and tell them the threat (indistinct) my mum can go and fight and be (indistinct). Yes, I (indistinct) I protect my son, you know. Not only my own life, my son. How am I going to tell? I (indistinct) I was so scared like I think my mum more scarer.
You thought your son's life was in danger and you (indistinct)?‑‑‑He - he tell not (indistinct) he tell - he warn.
You thought your son's life was in danger and you didn't tell anyone?‑‑‑Yes (ts 103).
The appellant was cross‑examined about threats made between 18 March 2011 and 12 April 2011, in the course of which he gave the following evidence.
Now between 18 March ‑ ‑ ‑?‑‑‑Yes
‑ ‑ ‑ and 12 April, has Jacky continued with his threats?‑‑‑Of course, like he says to me it had been set up already, he set me up and threatened me, you know. I got no choice. He tell me, as I said, 'And now you got to do it mate, because you already (indistinct)'. As I say, the same thing is my son, okay? That's all I'm going to say, the same thing. If not for my son, I'm not going to do anything for them, no. (ts 104)
He was also cross‑examined on his evidence that after the loan from Jacky had been repaid and his son had returned to Singapore he had refused to do anything more for Jacky:
Jacky was threatening to kill you and you just said that you wouldn't help him. Is that fair to say?‑‑‑Not exactly. Not - I can tell you when he put the threat on my family. I escape. But I still worry about my son. He put the threat on my son. He know my - he know my - my weakness (ts 108).

The directions by the primary judge

Bowden DCJ directed the jury that the appellant did not have to prove he was acting under duress: the onus lay on the prosecution to prove beyond reasonable doubt that the appellant was not acting under duress.
Having outlined the elements of duress under s 32 of the Criminal Code, his Honour directed the jury that the State would prove the appellant was not acting under duress if the jury was satisfied beyond reasonable doubt that (a) no threats were made; or (b) threats were made but (i) the appellant did not believe they would be carried out unless he committed the offences; or (ii) the appellant did not believe that what he did was necessary to prevent the threat being carried out; or (iii) the acts he did were not a reasonable response to the threat in the circumstances that he believed them to be; or (iv) there were not reasonable grounds for the appellant's belief that what he did was necessary to prevent the threats from being carried out. In the course of this, his Honour referred to whether it was 'reasonably possible that what the accused said about the threats occurred' (ts 127). That reference encompassed all of what the appellant had said, without apparently excluding threats to his son.
No complaint is made about those aspects of the primary judge's directions.
Turning to the case that each party had advanced at trial, his Honour told the jury that the State's case was that no threats had been made and that the appellant's conduct, including his discussions with Tony and his relationship with Jacky as revealed on surveillance footage, was not that of a person who was reluctant but of someone who was actively involved in the drug transactions. Having given some examples of that conduct on which the State relied, his Honour continued:
[The State] says it's inherently implausible that if in fact he was being threatened, not only a threat to his life but also to his son's life, that he wouldn't in fact advise the son of the threat so the son could make some security efforts himself.
[The State] says too that it's inherently implausible that if he was being threatened that he would not have said something to his own family or gone to the police or at least told someone ...
[The State] says too that it was just implausible that if he was - these threats had been made from '08 or '09 that suddenly in 2011, he gets money, repays the loan, and then threats are continually made and he doesn't do anything about those threats. (ts 128 ‑ 129)
In summarising the appellant's case, the primary judge referred to the submissions of the appellant's counsel that in considering not only what the appellant did but what his beliefs were, it was necessary for the jury to consider the disparity between the sophistication of Jacky and the lesser sophistication of the appellant, the appellant's lack of criminal convictions, and his financial difficulties, which placed him under pressure (ts 129). His Honour said the appellant's counsel said that 'you can accept the [appellant's] evidence or at worst you must have a reasonable doubt as to whether the threats were made' (ts 131).
The appellant was found by the jury to be guilty of both offences. By those verdicts the jury plainly rejected the appellant's defence of duress.

The grounds of appeal

The appellant relied on the following grounds of appeal:
1.The learned trial judge erred in law when directing the jury on duress.
Particulars
a)The learned trial judge erred in failing to direct the jury that the defence of duress may arise from threats made to a person other than the accused.
b)The learned trial judge erred in failing to direct the jury that the defence of duress may arise from threats capable of being carried out at a time later than the time or place of the threats.
c)As a result of the misdirection, the jury were likely misled into believing that it was not open to them to consider the evidence as to threats made against the Appellant's son in determining whether the Appellant was under duress at the time of the offending.
d)it is reasonably possible that the jury convicted the Appellant without regard to the whole of the evidence against him.
2.The verdict was unreasonable, and a miscarriage of justice has been occasioned, in that a jury properly instructed could not be satisfied beyond reasonable doubt that the Appellant was not under duress at the time of the offending.
Particular (b) of ground 1 was added by way of amendment on the hearing of the appeal.
On the hearing of the appeal, counsel for the appellant conceded (rightly) that ground 2 would be determined by the outcome on ground 1 and that it did not materially add anything. The appellant expressly disavowed any reliance upon a contention under s 30(3)(a) of the Criminal Appeals Act 2004 (WA) that the verdict was unreasonable or cannot be supported.

The disposition of the appeal

Ground 1

The relevant principles are well‑established and were not in issue on the appeal.
A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice: Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 324 ‑ 325; SGH v The State of Western Australia [2016] WASCA 161 [49].
In Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72], Kirby J enunciated the relevant principle as follows:
[I]t is a cardinal principle of appellate scrutiny of judicial instructions to a jury that regard must be had to:
(1)The character of the communication. It obliges a real contact by the judge with the collective mind of the jury fresh from having heard the evidence. It does not call for a convoluted legal essay whose only merit is that it might protect the judge from appellate reversal; and
(2)The entirety of the communication. Particular passages in the instructions must be read and understood in the light of -
(a)the issues actually fought at the trial;
(b)the addresses to the jury by trial counsel that immediately preceded the judge's instructions;
(c)any consideration and discussion between the judge and counsel prior to the instructions as to their content; and
(d)the entire content of the instructions, taken as a whole. It is a basic mistake to isolate any judicial (or other) utterances and to consider them out of context. But it is especially mistaken to take parts of a judicial communication with a jury in a criminal trial in isolation from the context. (citations omitted)
See also Cooper v The State of Western Australia [2010] WASCA 190.
As explained by his counsel on the hearing of the appeal, the appellant, in substance, made two complaints about the primary judge's directions to the jury: first, that his Honour failed to direct the jury that the defence of duress may arise from threats made in respect of the appellant's son (particulars (a), (c) and (d)); and secondly, that his Honour failed to direct the jury that the defence of duress may arise from threats capable of being carried out at a time later than the time or place of the threats (particular (b)).
In our view, there is no merit in either complaint. As to the first, in the context of the trial as a whole the jury would plainly have understood that the appellant may have been acting under duress by reason of threats made in respect of his son. That was the essence of the defence case. The whole import of the appellant's evidence was that he had participated in the sales of the drugs only because threats had been made that his son would be harmed if he did not do so, and that once his son was safely in Singapore he had refused to continue to be involved in drug dealing. At no point in his evidence did the appellant suggest that he acted under the duress of a threat to his own safety rather than his son's safety. While the appellant mentioned some threats to himself, it was always in the context of the threats to his son, and he always emphasised that it was the threats to his son that caused him great concern. This can be seen in the passages of the appellant's evidence set out earlier in these reasons.
The position in relation to the alleged threats to the appellant's son was put clearly by the prosecutor in her closing address to the jury as follows:
Now, [duress] has a particular legal meaning and his Honour will of course talk about that in his directions to you. I just want to touch on it briefly now. If the [appellant] was acting under duress, he must have believed that a threat was made and that the threat was that he or his son or he and his son would be killed. (emphasis added)

Counsel for the appellant did not advert to the matter at all in his brief closing address and nothing that his Honour said in his subsequent directions to the jury might reasonably have been understood by the jury as suggesting that the position was otherwise than as described by the prosecutor. The judge's direction on duress referred in general terms to threats, and to the appellant's evidence about threats. Nothing his Honour said distinguished between threats to harm the appellant and threats to harm his son.
It is also significant that the experienced counsel who appeared for the appellant at trial did not suggest that it was necessary for the jury to be directed that threats to the appellant's son were capable of amounting to duress. While the failure of a party to draw to the attention of the trial judge an inadequacy in his or her directions to the jury is not fatal to an appeal in which it is alleged that a miscarriage of justice occurred because of that inadequacy, the failure to do so may indicate that, in the context of the atmosphere of the trial, it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up: see Mahmood v The State of Western Australia [2009] WASCA 220 [65]; Russell-Miles v The State of Western Australia [2012] WASCA 57 [19].
In the context of the present trial, it is readily understandable why defence counsel did not consider it necessary to ask that such a specific direction be given. It was a short trial, occupying two days, so the evidence was fresh in the mind of the jury; the whole focus of the appellant's case at trial was on the threats Jacky had allegedly made in respect of the appellant's son; the prosecutor in her closing address had expressly stated that threats to the appellant's son were capable of amounting to duress; and nothing had been said at any stage of the trial that might have suggested that the position was otherwise.
In the circumstances, the references by the primary judge to 'threats' in his directions to the jury on duress would clearly have been understood by the jury to include the threats allegedly made in respect of the appellant's son. In the context of the trial as a whole, there was no perceptible risk of a miscarriage of justice from the absence of an explicit direction of the nature the appellant now says should have been given.
The appellant submitted that the decision of this court in Smith v The State of Western Australia [2010] WASCA 205 supported his argument with respect to particulars (a), (b) and (d). That submission cannot be accepted. In Smith, the appellant testified to the effect that he acted under duress by reason of the threats made to harm both another person (his partner) and himself. The judge's directions to the jury erroneously conveyed that the only relevant conduct to be considered related to the appellant and not his partner [162], [163]. The present case is distinguishable from Smith. Unlike in Smith, nothing the primary judge said indicated that only threats to the accused were relevant. There was no need for the primary judge to give the direction that was required in Smith.
There is also no substance in particular (b) of the grounds of appeal. In support of it, counsel for the appellant sought to rely on the following passage from his Honour's directions on duress:
Now you'll appreciate, when you consider the question of reasonableness, you must consider the other alternates [sic] available to him and that necessarily means that the accused must have a reasonable basis for believing that the law and its agencies can't afford protection from the threat. As I'm sure you will appreciate, it's a feature of a civilised society that a person can render threats of personal violence ineffective by reporting the matter to police (ts 127 ‑ 128).
It was submitted that those comments may have left the jury with the impression that the threat must be one of immediate harm because they suggested that if there was any opportunity to go to the police for protection the defence was not available. We do not accept that submission. It goes beyond a strained interpretation of his Honour's directions to one that is simply untenable. It is, with respect, fanciful to suggest that even in isolation, much less in the context of his Honour's overall directions and the context of the case as a whole, the jury might have understood those observations in that way. As the first line of the quoted passage makes plain, his Honour's comments are directed to a specific (and different) element of duress, namely the reasonableness of the response to the threat. They are incapable of being understood as limiting what can count as a threat. Nor was there anything else that might have been capable of causing the alleged misapprehension.
Ground 1 of the grounds of appeal must be dismissed.

Ground 2

As explained earlier, it necessarily follows that ground 2 must fail.

Conclusion

The application for leave to appeal should be dismissed and the appeal therefore dismissed.